Gross misconduct - unauthorised absence

[griswald]

Small rural delivery office, 7 full-time, 1 part-time. No onsite DOM but the Post Office, to which we are attached, employs a part-timer to receive & allocate Special Deliveries and act as liaison to DOM. DOM phones a couple of times a week and visits sporadically, but usually once a month.

No 'official' holiday request system in place, but staff put their names on a wall-planner for the weeks and days that they would like to take. This has been the system for excess of 20years and has never caused any issues.

Recently, we had a free week on the planner, so one colleague put himself on the board to take Monday & Tuesday and I put myself down for Thursday through to Saturday (3 days) which I felt was within my annual entitlement. These dates were in November and the dates were entered at least four weeks prior to them being taken.

The 'system' then should've been that the Post Office part-timer would've advised the DOM and, if necessary, arranged the regular casual holiday cover. At the start of each week, the previous week's leave/absence/rotational days off, along with the week's time sheets, are sent to the admin at our regional office by the PO part-timer. The regional office admin is also our local CWU rep.

A week after I returned from my break, the admin and DOM visited and questioned me informally saying that I had taken unauthorised absence because it was in excess of my entitlement. However, it wasn't actually in excess but would be if I took the three days I had previously booked for between Xmas and New Year. At this time, the DOM suggested that I could either take the three days as unpaid, or cancel the forthcoming days. I opted for unpaid.

My colleague, who took the earlier two days in the same week was spoken to, but no further action has been taken in his case.

At this point, I thought that would be the end of the matter...... unfortunately not!

I was invited to a fact-finding interview with the DOM, which I attended and explained as fully as I could. The DOM said that, as they didn't know about my leave until after it happened it was deemed to be unauthorised. I suggested that I couldn't be held responsible for a failure in communication between management and also queried how they managed to organise cover if they didn't know anybody was off.

I then received a letter from the DOM saying that they had escalated the matter to DSM because any likely penalty would be out of the DOMs authority.

Today I received a letter from DSM which says "following your fact finding interview on 11th December concerning unauthorised absence from point of duty, you are now being charged with Gross Misconduct."

No previous Conduct Code, no attendance issues (1 day sick 5 years ago), no accident history, no complaints from colleagues, staff, management or customers.

Any advice for a non-union member?

[postiel]

Yes.
Should have joined the union.

[TrueBlueTerrier]

I can't see how you did anything wrong, especially if they accepted the 3 days unpaid over christmas. Any further action would seem unwarranted.

As a non union member try and get a friendly Union rep to advise, failing that try ACAS and perhaps an employment lawyer if you have the correct insurance.

Also a phrase that may help is "Custom and Practice" what you did may be technically wrong, but is was common practice in your office.

[hatetheboss]

You need to read the conduct code you will find it in the downloads section. Did you have the opportunity for someone to sit in on the fact finding interview?

[griswald]

You need to read the conduct code you will find it in the downloads section. Did you have the opportunity for someone to sit in on the fact finding interview?

I've got a copy of the Conduct Code, no mention of 'unauthorised absence ' being regarded as Gross Misconduct (things like theft, violence, under the influence, etc are included as serious enough to be Gross Misconduct)

Yes, I had the opportunity to have a colleague present, but declined simply because I felt that I'd done nothing wrong and, as the CWU rep was involved with the admin screw-up, doubt that membership of the Union would've helped in this instance.

I'm still looking for a copy of the somewhat elusive 'Unauthorised Absence Guide", if anybody has one? (Not available to anyone other than management apparently)

[Stammerking]

Good example of Non Union member thinking that it will not happen to me!!!

Does not matter if you have not had a day off sick, always done your lapsing, come in 30m a day for free you are only a number and probably a £$£$£ saving for the DSM and DOM, a union is there to protect and preserve I personally have no sympathy, as you failed to join CWU paid your way like all the other members have !!!

[hatetheboss]

Stammerking is right, although a little harsh, people need to be in the union for protection. Royal Mail see it as an opportunity to get rid of you, personally this should be easy for any decent rep to put a good case forward.

[griswald]

The pros and cons of union membership are manifold, none of which I care to debate throughout this post. However, the trade union movement aspires to protect workers' rights, not necessarily limited to the rights of union members. If it is being suggested that employers adopt a different perspective to members as opposed to non-members, then that opens a whole new debate regarding employment law.

For information, I was a member of the CWU until last year and, prior to my employment with RM, was a member of the TGWU for 20years.

[fishtank]

The question of union membership has been debated ad nauseam on other threads so there is no need to go into it on this one.

They will attack you on two fronts.

1) Were you already aware you had used all your annual leave entitlement, this is to show there was a deliberate or wilfull breach of the conduct code necessary for gross misconduct. Sort out this part of your defence, It's very important.

2) Did you follow the local procedure for booking annual leave.

To be honest if the details of your case are accurate it sounds very shaky as a conduct case never mind gross misconduct but I would still get some kind of help if possible and prepare for the worst and a subsequent Employment Tribunal.

[daveyeff]

I think you hit the nail on the head when you asked how they arranged for the duty to be covered if they didn't know you were going to be off, it sounds like an opportunistic stitch up and they are going to try to get rid of you. join the union and get help if needs must, and I think they do.....i'm not sure but I don't think unauthorised absence is gross misconduct....perhaps an area rep or dingo or someone could answer this. certainly not the way you have described it anyways. and as someone said earlier, a good rep will piss all over this jumped up charge.

[rehabron]

The pros and cons of union membership are manifold, none of which I care to debate throughout this post. However, the trade union movement aspires to protect workers' rights, not necessarily limited to the rights of union members. If it is being suggested that employers adopt a different perspective to members as opposed to non-members, then that opens a whole new debate regarding employment law.

For information, I was a member of the CWU until last year and, prior to my employment with RM, was a member of the TGWU for 20years.

!) Your colleagues pay a subscription of £ 3.47 pw for representation in disciplinary matters and for their protection so why should you enjoy the same benefit free gratis then everyone else would expect this.
The situation that you now find yourself in I think that £ 3.47 per week is well founded.
2) Your holiday planner at your office is Dickensian and not fit for purpose in relation to planning for resourcing and recording of employees annual leave entitlement.
Each employee should be issued with their annual leave entitlement for the year giving the total amount of days available and each time leave is taken a new sheet should be issued showing the amount of days that are left in your entitlement so that their is no ambiguity when further ad - hoc days are requested.
Had your employer kept you continually informed of the amount of days that you were still entitled to then the 3 days in excess of your entitlement would not have occurred and in this respect your employer has failed you.
3) The fact that your DOM highlighted that these 3 days were over your annual leave entitlement and by giving you the option to take this as unpaid leave then that is the end of the matter and I trust you have the wage slip showing these days as unpaid to substantiate the instructions giving from your DOM.
4) Employers will show what they constitute as gross misconduct but will always qualify this by stating that the list is not exhaustive and if unauthorised absence is not listed this gives them the right to classify under gross misconduct.
5) Your other colleague who took 2 days in the same week and according to you no action taken and if you can support this claim that your colleagues 2 days was in excess of his/her entitlement then you may have a case for victimisation and/or discrimination.
6) A good union rep would breeze through your predicament and although reps are instructed not to take on cases retrospectively you may find one willing to give advice but get the form for once again becoming a CWU member you know it makes sense.

[Son Of God]

I suggest you promptly speak with your branch secretary and ask if you can join the union and be represented on this case on the understanding you now pay all weeks you were not a member prior to representation. Yes it may cost but the loss of your job will cost much more.

No guarantee this will be agreed but can be done and worth an ask.

[Decky Boy]

Griswald, contact your local Citizens Advice Bureau (CAB) who often have very good (ie dedicated) employment law specialists on board. If the incident was as described by you above the idea that it was gross misconduct is ludicrous. There appeared to be a misunderstanding... nothing more.
You never intended to damage the business or break the law in any way and simply followed "custom and practice" at your office. You also stated that RM had cover arranged and in place

Contact the CAB immediately... they will advise you and possibly arrange a consultation with one of their solicitors. I think you've been done wrong. Good Luck.

[griswald]

I suggest you promptly speak with your branch secretary and ask if you can join the union and be represented on this case on the understanding you now pay all weeks you were not a member prior to representation. Yes it may cost but the loss of your job will cost much more.

No guarantee this will be agreed but can be done and worth an ask.

Thanks so much for this piece of advice. I've applied to rejoin the union and back-date my subscription to the time when I left (Feb 2014). All with the agreement of Branch and it has been agreed that I'll be represented by Area Rep at the hearing.

Feeling less apprehensive now, but still concerned about the outcome.

[POSTMAN]

I've only this guide,a branch should have more info...

01 Draft Absence Notification and Maintaining Contact Guide.doc