gross misconduct

[jonnyboy]

Hi all

Me again, but for a mate this time!

Mate of mine is in similar game to me. Times very hard, work coming in but he has big debts and needs £ quickly. Has a few vans out, and seems like a newly-promoted (8/9 months ago) contract maintenance van foreman is taking the ****. Nothing proven but suspicions about lateness, early finishing etc. Whispers from clients too which is the most worrying thing.Mate far too soft and trusting, gives his foremen a reasonably trouble free life, pays well, company phone etc. Foreman and his labourer best mates, live close and the likes. No option to move people around between the vans due to skills shortages. He put the lad through college but has recently found out he failed exams due to attendance.

He aint been well so hasn't been around much. Has been going on trust. On the mend now and needs to save cash very quickly. Best way imho is to bullet the guy and run the business from the guys position ie take over that van. Will be difficult but would work medium term. So i've set the scene.

Mate has evidence the lad has been texting constantly whilst at customers houses, so far the record is 60 outbound texts in one day but its fairly consistent. Lad was previously warned verbally (not officially as he doesnt do paper !) about getting ar*e into gear. Van diary checked and concurs that said texts (not to others in the company) happened outside of break/lunchtime. Also evidence that lad is up all night texting (irrelevant but scene-setting) from the bills. Mate also think there is messenger being used but impossible to prove.

What do you guys think? Is it gross misconduct? All texts fall within "bundle" so no direct costs to company, but there is the lack of productivity + client viewing it.

 

[markjay]

If taken to a tribunal - your mate has no official written policy regarding dismissal procedures etc - he will be taken to the cleaners.

Don't even think of letting anyone go based on disciplinary action unless you have hips of written policies and producers in place - and have followed each applicable policy to the dot.

On a more general note - it is wrong of your mate to try and get rid of his employee based on 'fake' misconduct - it is not only unfair and morally wrong, it will also not wash and will come back to bite him.

The texting is not gross misconduct in my view anyway, and if your mate is unhappy about this then he should put pen to paper and produce written warning re texting during working hours, and require the same of everyone else to show non-discriminatory attitude.

If your friend thinks that cash is tight this is a legitimise reason to reduce staff, and he could make his employee redundant - which would be the correct and proper way in this case in my view - though he must tread carefully and follow procedure (consultation period, etc).

Just to clarify - I am not a Union member - I am an employer myself, have been for many years. Be fair to your employees - it's the proper way and it's also the law - and anyway it is almost impossible to pull off something like what you had in mind and not get hurt. My view...

 

[johny5_uk]

I doubt very much that this would be seen as gross misconduct for just texting and would be wide open to a tribunal for constructive dismissal.
Check his contract and it could highlight incidents that would constitute gross misconduct. If nothing ia there then you would have to hold a formal disciplinary and explain that should the texting continue that this could be seen as gross misconduct and may result in his termination.

Totally agree with Markjay (slow typing on an iPad )

 

[LTD]

Take the contract phone from him and provide a PAYG phone in it's place so he has a means of being contacted during working hours.

If he moans then you can tell him it's cost-cutting.

If he is smart then he will get the hint.

 

[jonnyboy]

All good so far chaps, thanks.

I agree about the fairness to employees thing etc. That said, it has to work two ways, and the way I see it is my mate has been far too good to the lad and this is how he gets repaid - the texting from what I can make out is just one aspect of the lad's performance, but it is documentable.

With regards to the PAYG thing, a good concept. I'll mention it, although I suspect its stuck in a contract as the lad was only given the phone when promoted. There would be the issue of calls back to my mate too.

 

[LTD]

With regards to the PAYG thing, a good concept. I'll mention it, although I suspect its stuck in a contract as the lad was only given the phone when promoted. There would be the issue of calls back to my mate too.

The contract phone can sit in a desk if needed - it's the principle that counts.

Return calls are a matter of 'call me and I'll call YOU back'

 

[Sp!ke]

It doesnt sound like gross misconduct to me either. He's a young lad and texting is what they do.

If he's keeping it within the contract limit then he's doing OK.

It sounds more like ypur mate needs to be looking at making someone redundant to make ends meet - not misconduct.

 

[MJH]

He needs to be careful.

Gross misconduct is difficult to make stick unless something is in the contract of employment stating that a specific activity will lead to instant dismissal, even then it can be hit and miss but most people wouldn't question it if it's in black and white.

Otherwise need to follow some basic steps;

1st off a verbal warning, recorded on file and copy to employee.

Next offence a written warning confirming any further issues within a certain time frame e.g. 3 mths could lead to a final written warning and possible dismissal.

Final warning and ubsequent dismissal if serious enough.

For each issue he will need proof, but it can be done if a short time frame if you work it right.

Otherwise it's redundancy but you have to involve everyone and do a selection process etc to do it properly and it can take months.

There are still plenty of folks that would just bite the bullet and kick the guys **** down the road, but it's risky. Depends how big your mates balls are.

My advise, go and see an employment consultant or speak to ACAS for free, they are very helpful. But do get some proper advice !

 

[Noodle-Pulp]

You may find that the phone company can bar text messages from the specified mobile.

 

[jonnyboy]

It does sound like redundancy/demotion is the way forward for him. The reality would be that if my mate cant make himself redundant therefore the role (which is about leading by example, and from what he tells me this chap is not) is effectively gone as it will be done by himself.

I'll have a word tomorrow.

Big balls? Massive, but he's a rght softie sometimes...

Isn't it mad how "acceptable" this sort of behaviour is? I remember way back when I was in my twenties, any form of personal phone call/visitor/distraction was a potential warning. Now it's just "what they do".

 

[LTD]

Sounds like he needs to call all the vans in and tell everyone that one van and staff needs to go and ask for volunteers before he has to make a decision.

 

[jonnyboy]

Thats a good idea. I'll mention it...

 

[timskemp]

A program of performance evaluation and redundancies sounds like the way forward to me, unless they have policies in place saying that sending texts from the company mobile is gross misconduct then it's not gross misconduct, after all nothing has been done that compromises h&s or brings the company into bad repute or is criminal or otherwise negligent.

I've had interesting employment positions before, I would drag the entire staff at that level in for a meeting and say that in order to stay competitive efficiency needs to increase and offer some incentive (employee of the week) type thing to justify performance measurements, then after a few weeks haul the non performers in and put them on warning to improve...

Before doing anything your mate needs to speak to his employment law advisors, or just sack him and be prepared for a tribunal (that's the way a client of mine does it, if he doesn't like someone or needs rid he fires and then sits back and waits...)

 

[jonnyboy]

All good chaps, thanks.

It's not a big company. Spoke to him this morning, he suspects it may be a case of making one of them on that vehicle redundant - either the offender, or the labourer and demoting the offender as not up to the job - with my mate taking over the role.

Don't envy him. It's never easy changing things around - been there....

 

[Deleted member 37751]

All good chaps, thanks.

It's not a big company. Spoke to him this morning, he suspects it may be a case of making one of them on that vehicle redundant - either the offender, or the labourer and demoting the offender as not up to the job - with my mate taking over the role.

Don't envy him. It's never easy changing things around - been there....

Not wishing to be too frank, but these lads, by the sounds of it, have been walking all over your pal for a while?
I was in an almost identical situation about 3 years ago and it was because I had been made foreman that all the other lads thought they could take the p155. It came to a head after 3 months and I gathered everyone in the yard and told them all straight- from now on, this is how it's going to be and if you don't like it, take a hike (or words to that effect). Sounds harsh but, my problem was that I was too close to them and I needed to put some professional distance between us.

 

[Andi968]

Although the texts are part of the bundle they are still paid for within the monthly contract therefore owned by the contract holder. If the phone is supplied to the employee solely as a work phone (not for personal use) then in the eyes of the law it is theft from a employer and therefore gross misconduct.
I am sure we all remember council employees a few years ago been sacked for emailing and surfing in works time and this is no different.
Now on a lighter note I remember a few years ago when I worked as a chef in a busy pub there was this young (20ish) lad on prep that was texting all the time and he received warning after warning from about it. Then one paticular very busy hectic shift I caught him sneakily txting yet again, Without a word I walked upto him grabbed the phone dipped it in the ale batter and placed it in the deep fat fryer. His face was a picture needless to say he never took his phone from his pocket while I was around ever again

 

[Sp!ke]

Without a word I walked upto him grabbed the phone dipped it in the ale batter and placed it in the deep fat fryer. His face was a picture needless to say he never took his phone from his pocket while I was around ever again

I'm thinking of all the contaminants you've now introduced into the batter and oil.

I hope you immediately changed both.

 

[crockers]

Sounds like he needs to call all the vans in and tell everyone that one van and staff needs to go and ask for volunteers before he has to make a decision.

He may lose the best workers doing that........

 

[Andi968]

I'm thinking of all the contaminants you've now introduced into the batter and oil.

I hope you immediately changed both.

165f took care of them going off thread though do you know about the 10 second rule? where by if food is on the floor for less than 10 seconds it is still edible by law

 

[219]

As per my reply on the other forum : regarding the suspected lateness/early departures - all your mate has to do is appear on site 'early doors' a few times to see when they are turning up , or at the end of the working day . If they are found to be late without good reason / going away early , I'd presume their wages can be adjusted to the hours actually worked ( sort of negative overtime ) .

I'd also look into whether texts can be removed from the bundle , then tell lad he can certainly text all he wants , BUT he will be charged 10p or whatever the rate is per text message , as itemised on the bill . Non business telephone calls ( identified from itemised bill ) could also be charged for .

Other than the cost issue , fitment of trackers to all company vehicles so their position can be monitored from office pc is another option . Similarly for company phones - there are phone trackers available which triangulate phone locations - usually for parents to track children .