Dismissal for Gross Misconduct

[leclerc]

Re: Dismissal for Gross Misconduct

It does not ruin references at all because the fact remains that they will state that you were employed from x date to y date and that your employment was terminated on z date.

[the94west]

Re: Dismissal for Gross Misconduct

It does not ruin references at all because the fact remains that they will state that you were employed from x date to y date and that your employment was terminated on z date.

I assume that what they say is down to a few factors, as in how the HR feel about references, whether they want to truly give a bad reference, or if that when it says my employment ended on said date... could that constitute redundancy/resignation? if the person asking for the reference chooses not to asl that deep?

[narrow]

Re: Dismissal for Gross Misconduct

Hi everyone,

Where do I start, well firstly regretfully I have found my self in the same situation as 94 in that I too work for a retail company and have for 5 years and am currently on suspension for leaving the premises without paying for an item. something I deeply regret my circumstances however were:

I purchased my shopping before store closer; part of this shopping was a bottle of Pepsi max, I wanted cans but couldn’t find any (my preferred purchase).
I then placed my shopping in the chillers as there were chilled items.

I then went about normal duties when I came upon cans of Pepsi Max on the power Isle, I picked up 1 pack to place in the chillers with the intensions of exchanging it with the bottle I had purchased after speaking to the duty manager at the end of shift.

The end of shift came I was tired and have been stressed just lately with the fact that two members of my team had left for career break and maternity leave and they had not yet been replaced, so without thinking I went into the chillers grabbed my shopping including the cans which I now realise id placed into the bag with the bottle id purchased something I can only excuse as these were items I purchased on a daily basis, went to changing rooms placed heavy items into my rucksack again something that I did daily but only it would have been at the checkouts.

I was Stopped for a staff search which I thought nothing off as I’d done this many times before and upon going through my shopping with the receipt I then realised my error and that I’d not paid for or exchanged the cans.

In my initial shock and embarrassment id stated that I hadn’t put them there and didn’t know how they got there. Something I realise was wrong and I deeply regret saying.

So as you can see you are not alone which is why I think I have done this post, i'm not looking for advice but welcome any comments as at this moment I am pondering resignation or clinging to a slight hope that I may keep my employment once I attend the disciplinary meeting.

[Eloise01]

Re: Dismissal for Gross Misconduct

There is no purpose in resigning, so you may as well ride it out. If you resign your reference can, and quite possibly will, state that you resigned whilst suspended and facing allegations of misconduct / gross misconduct. In the eyes of any potential employer that means you resigned because you were guilty. So you may as well get to the disciplinary, explain what happened honestly, and (seriously here, people think I'm never being serious when I say it) beg! Based on what you are saying, although it is all down to the eyes of the hearing, your circumstances are different. The previous poster set out to steal (or that is how I read it) and got caught. You didn't set out to steal - you intended to do one thing, did another and got flustered. It does not make it all right, but it makes it understandable, and hopefully if the people hearing the matter also understand it you may get away with a warning. Tell the whole truth and the honest truth - few people are as good at lying as they think they are, and at this stage there is no benefit to you in lying anyway. Explain why you said what you did, apologise and hope for the best.

[basa48]

Re: Dismissal for Gross Misconduct

It does not ruin references at all because the fact remains that they will state that you were employed from x date to y date and that your employment was terminated on z date.

IMO that is only partially correct.

I deal with requesting and vetting references daily and whilst we of course verify start / finish dates, we also ask the reason for leaving and would you employ the subject person again (and if not why not).

[Eloise01]

Re: Dismissal for Gross Misconduct

IMO that is only partially correct.

I deal with requesting and vetting references daily and whilst we of course verify start / finish dates, we also ask the reason for leaving and would you employ the subject person again (and if not why not).

I missed this earlier post but I endorse your comments. Some employers only provide basic references that confirm dates only. But despite reading many confident assertions that this is what most employers now do, there is actually no evidence to support this view, and I know of few employers who do! I strongly suspect this is another of those mythologies perpetrated online. It's relatively easy to say something with absolute certainty when nobody can hold you to it, or test your credentials to say it. Not that i think leclerc was in any way attempting to mislead. But hear something often enough,and it gets believed.

Another online mythology is that retrictive covenants aren't enforceable. For the record, don't bet on it....they may be!

[FlamingParrot]

Re: Dismissal for Gross Misconduct

It all depends on who the employers are and also how they are asked to provide references. I have been asked to provide references for other people in different ways, sometimes they are specifically asking for confirmation of dates (the financial sector seems obsessed with covering every possible gap), others they will send a form asking questions such as "would you employ this person again?" They may also ask how you rate certain things on a scale of, say, 1 to 5, etc. The idea of writing a long letter commenting on an individual's skills, abilities, performance, dedication, etc. seems to be a thing of the past.

[narrow]

Re: Dismissal for Gross Misconduct

Well what do you know I got dissmissed after all, don't know what to say as if you read my previous post it was never my intention to steel anything, unfortunately my employer didn't except my reasons and stated that they could only look at the evidence in black a and white. And there was I thinking there was a grey area to be looked at.
Anyway can't turn back the clock but I do intend to appeal and any advice on this would be most welcome so I am going to post a copy of the appeal letter I am trying to formulate:

Notification of Appeal

I wish to appeal against the decision of my dismissal for Gross Misconduct for non payment of goods – found on staff search.

The grounds for my appeal are as follows:

1. The investigation was not complete.
2. I was not given a fair hearing.
3. The penalty was too harsh.
4. New evidence needs to be considered.

The investigation was not complete.

Following advice from ACAS and I quote:

“When investigating a disciplinary matter take care to deal with the employee in a fair and reasonable manner. The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against

I believe no evidence to support my case was investigated, my purchase history was not looked into, witnesses were asked leading questions to support evidence against me only, which had an influence on the decision made.


The length of time to initiate Investigations and obtain witness statements was prolonged which gave time for my case to be discussed amongst members of staff something which I have evidence of and a matter which was supposed to be private and confidential. I feel this was breeched and also had an adverse effect on the reason for dismissal.

I was not given a fair hearing

My hearing was put in place without my receiving and witness statements or meeting minutes so I was not given time or the information to be able to review my case and prepare a defence.

My Disciplinary hearing was interrupted on two occasions by staff walking in on the meeting and the manager dealing with their queries not allowing me to concentrate, this also happened during my investigatory meetings.

During my hearing there was an adjournment for 51 minutes, which I feel was unfair especially as I was led to believe this was to deliberate my case, but yet again the manager carried out other business with name deleted who was one of the Tesco staff members that interrupted the disciplinary meeting.

My disciplinary was conducted by way of an interrogation of facts that only supported evidence against me and statements such as “looking at it in black and white” which was mentioned on several occasions, and “If it was me” and “you should have covered your back” giving rise to a lot of what if’s!

It was stated that “maybe it was a genuine mistake just proving it” and “can I trust you that’s the question” again this is a personal comment on my character and nothing to do with the incident so I feel I was also being judged on not only what had happened but whether the manager could trust me or not which I feel is unfair and not being impartial.

When it was quoted by the manager that “I can only look at this as black and white” I was then given the opportunity and asked if I wanted to resign, clearly showing that the main intention was for me to leave or be dismissed and that my reasons had not been investigated.

The penalty was too harsh.

I went into this meeting under the believe that the penalty may have been a demotion as this is what I know to have been discussed in my absence, so my expectations were falsely led in this direction again not letting me prepare for the outcome.

I feel I had made a mistake in not swapping or exchanging the cans of Pepsi max, and that if my character had been investigated correctly and objectively and an
In-depth investigation been carried out the penalty would not have been dismissal.

New evidence needs to be considered.

As it was stated by the manager “there was chance of leaving shop not paid for shopping” I was not given opportunity to leave shop with the unpaid item, as had I have been this may have triggered my memory that I had not done an exchange.

As stated in the minuets if I had been allowed to leave the store, upon my becoming aware that I had not paid for the cans of coke I would have returned to the store upon the store opening and paid for them and I believe this should have been investigated.

Sorry for the length of this thread but i'm just trying to get any advice. thank you in advance

[Eloise01]

Re: Dismissal for Gross Misconduct

Quite honestly, at this stage, I think you are on a hiding to nothing - I can't see that you will win an appeal, and you certainly can't win an unfair dismissal based on these arguments.

Well what do you know I got dissmissed after all, don't know what to say as if you read my previous post it was never my intention to steel anything, unfortunately my employer didn't except my reasons and stated that they could only look at the evidence in black a and white. And there was I thinking there was a grey area to be looked at. Your employer decided otherwise - and that is their absolute right. The test of is whether they have a reasonable belief that you stole, not whether you intended to or not. They have more than reasonable belief - they have evidence that you were attempting to leave the store with goods that were unpaid for. How that might have come about is something they don't have to consider. They are right - they can decide to look at it in black and white terms, and they have.

Anyway can't turn back the clock but I do intend to appeal and any advice on this would be most welcome so I am going to post a copy of the appeal letter I am trying to formulate:

Notification of Appeal

I wish to appeal against the decision of my dismissal for Gross Misconduct for non payment of goods – found on staff search.

The grounds for my appeal are as follows:

1. The investigation was not complete.
2. I was not given a fair hearing.
3. The penalty was too harsh.
4. New evidence needs to be considered.

The investigation was not complete.

Following advice from ACAS and I quote:

“When investigating a disciplinary matter take care to deal with the employee in a fair and reasonable manner. The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against

I believe no evidence to support my case was investigated, my purchase history was not looked into, witnesses were asked leading questions to support evidence against me only, which had an influence on the decision made. You misunderstand what an investigation is. They investigate their case - not your defence! The allegation was very simple and required none of the "history" that you seem to expect it to. Your purchase history etc is irrelevant. Question: Were you leaving the store with items in your possession which you did not pay for? Answer: Yes. Question: Did they find these unpaid items in your possession and at the time of the alleged offence? Answer: Yes. Investigation over.

The length of time to initiate Investigations and obtain witness statements was prolonged which gave time for my case to be discussed amongst members of staff something which I have evidence of and a matter which was supposed to be private and confidential. I feel this was breeched and also had an adverse effect on the reason for dismissal. Irrelevant. Unfortunately gossip is something that happens. It shouldn't, but it does. The reason for dismissal is that the employer believes that you attempted to steal items from the store. They have evidence that supports that.

I was not given a fair hearing

My hearing was put in place without my receiving and witness statements or meeting minutes so I was not given time or the information to be able to review my case and prepare a defence. And did you ask for these, or ask at any point for a postponement?

My Disciplinary hearing was interrupted on two occasions by staff walking in on the meeting and the manager dealing with their queries not allowing me to concentrate, this also happened during my investigatory meetings. This is bad manners and bad practice. It isn't unlawful though.

During my hearing there was an adjournment for 51 minutes, which I feel was unfair especially as I was led to believe this was to deliberate my case, but yet again the manager carried out other business with name deleted who was one of the Tesco staff members that interrupted the disciplinary meeting. Ditto. What you believed isn't relevant, and nor is what they actually did during that time.

My disciplinary was conducted by way of an interrogation of facts that only supported evidence against me and statements such as “looking at it in black and white” which was mentioned on several occasions, and “If it was me” and “you should have covered your back” giving rise to a lot of what if’s! And they are allowed to do this. They do not have to accept your explanation - the evidence in front of them says that you attempted to steal. They must listen to your explanation, but they don't have to agree with it.

It was stated that “maybe it was a genuine mistake just proving it” and “can I trust you that’s the question” again this is a personal comment on my character and nothing to do with the incident so I feel I was also being judged on not only what had happened but whether the manager could trust me or not which I feel is unfair and not being impartial. Sorry - I don't think that is unfair at all. I think it is the crux of the matter. They believe, with evidential support, that you are a thief, and whether they could trust you again is absolutely crucial to their considerations.

When it was quoted by the manager that “I can only look at this as black and white” I was then given the opportunity and asked if I wanted to resign, clearly showing that the main intention was for me to leave or be dismissed and that my reasons had not been investigated. It proves no such thing. It proves they were willing to allow you to resign, and that is all it proves.

The penalty was too harsh.

I went into this meeting under the believe that the penalty may have been a demotion as this is what I know to have been discussed in my absence, so my expectations were falsely led in this direction again not letting me prepare for the outcome. If you were absent you do not know what was discussed; and discussions about options available to the employer are not expectations to rely on - they are discussions which you are not party to. Nobody promised you this outcome.

I feel I had made a mistake in not swapping or exchanging the cans of Pepsi max, and that if my character had been investigated correctly and objectively and an
In-depth investigation been carried out the penalty would not have been dismissal. Sorry, again I must disagree. This is mitigation. You say that you are of good character. The evidence says you attempted to steal from them and they have more than reasonable belief of that. There is a first time for everything - and that is what they chose to believe. Previous good character does not provide evidence that you didn't do something when there is evidence in front of them that you did.

New evidence needs to be considered.

As it was stated by the manager “there was chance of leaving shop not paid for shopping” I was not given opportunity to leave shop with the unpaid item, as had I have been this may have triggered my memory that I had not done an exchange. Speculation. This is not new evidence. You were caught with unpaid items in your possession - what might have happened isn't evidence or relevant.

As stated in the minuets if I had been allowed to leave the store, upon my becoming aware that I had not paid for the cans of coke I would have returned to the store upon the store opening and paid for them and I believe this should have been investigated. Ditto - you also might not have. How can they investigate something that didn't happen? And again - this is not evidence - it is speculation about something that didn't happen. You might also have thought that it was easy to steal, and done it again!

Sorry for the length of this thread but i'm just trying to get any advice. thank you in advance

I am sorry, but as I told you previously, you had grounds for mitigation - to try to explain what your version of the events was - but that this was not a strategy that would invariably succeed. It didn't. Appeals seldom succeed - even when there are good grounds for them. In this case I do not think there are good grounds, and there is no prospect of winning a tribunal claim for unfair dismissal because it wasn't, in the eyes of the law, unfair. You gave it your best shot, but now I think it is time to move on from this.

[FlamingParrot]

Re: Dismissal for Gross Misconduct

I was wondering whether it would be possible to end this with a settlement, if nothing else, just for the sake of negotiating an agreed reference. I know a few cases where people have been sacked for alleged gross misconduct (myself included) and ended up with a settlement and an agreed reference. One of them actually resigned and then claimed constructive dismissal, which has a very low success rate (just 3% if I remember correctly), yet he was also offered a small settlement and an agreed reference. :confused2:

I am aware that none of the cases I know of, involved allegations of stealing, so I don't know how viable this is, but it's an idea.

[narrow]

Re: Dismissal for Gross Misconduct

Thanks for the advice Eloise, I agree with you its time to move on Guess i just needed to hear it from someone else, although I was only going to raise an appeal because i'd spoke with ACAS over the telephone and they suggested it. But when all is said and done I guess we really are just a number and thats sad.
Looking at your comments I can see where the employer is coming from but I know i'm innocent and I can live with that. Here's to finding new employment and thanks again.......

[Eloise01]

Re: Dismissal for Gross Misconduct

It is an idea - unfortunately in this situation I am not convinced it is a very good one, although the decision must be the OP's. The alternative scenario being that the OP brings a claim, in order to attempt to force a settlement, and the employer views this - quite correctly as it happens - as vexatious. They dig their heels in, demand a PHR asking for costs and a deposit order - I have absolutely no doubt that a tribunal would agree to at least the deposit order and quite possibly both. Things have just gone from bad to worse. To say nothing of what the truthful reference would say - "here we have a former employee who was dismissed for gross misconduct in that they attempted to steal from us, and then had the audacity to attempt to blackmail us into a settlement by claiming unfair dismissal". If the written reference doesn't say that, the telephone conversation will!

I realise that this is an unpalatable truth for the OP, but the evidence says they were stealing. Intent, forgetfulness, etc are simply speculation. They may be true, but they are still speculation because one cannot discern evidence that says they are true. As the employer stated, the evidence is black and white - they were attempting to leave work with items which they had not paid for.

[Eloise01]

Re: Dismissal for Gross Misconduct

Thanks for the advice Eloise, I agree with you its time to move on Guess i just needed to hear it from someone else, although I was only going to raise an appeal because i'd spoke with ACAS over the telephone and they suggested it. But when all is said and done I guess we really are just a number and thats sad.
Looking at your comments I can see where the employer is coming from but I know i'm innocent and I can live with that. Here's to finding new employment and thanks again.......

It isn't going to be easy - but it can be done. The key is omission and honesty. Omission - do not put any explanation for leaving previous jobs on application forms. Leave it blank even if asked. Truth be told, few employers notice or care - they read what is on the form and decide if you look good enough to interview. Sat nothing at interview unless directly asked - if asked tell the whole truth and throw yourself on their mercy / good graces. There's a shot that someone will believe you. If offered a job - if you haven't already told the truth, do it then, don't wait for them to find out. Never tell a lie - better to say or write nothing.

Try agency work - agencies may be more inclined to try you out as they can dispose of you in seconds! That would get you a new reference.

Be prepared to do whatever job / take whatever pay - it's easier to work up from something than to work up from nothing.

[narrow]

Re: Dismissal for Gross Misconduct

Thank you again for some sound advice.