Avoiding dismissal when it seems inevitable
Published 27 June 2018
There are some disciplinary offences that if admitted can almost guarantee an employee will be dismissed - and theft of company stock is definitely one of them.
If you add to that, that the employee initially lied before being forced to tell the truth, you would be forgiven for thinking at this very early stage in this piece 'I know the outcome to this case.'
Sarah was also convinced that she knew the outcome when she contacted the Castle Associates employee support centre for help. She was so sure of her fate that she apologised to our representative for wasting his time.
Sarah admitted taking a discarded hard drive from the electronic recycling company where she worked. Sarah said she would happily accept a warning if it meant she could return to a job she loved and had done for seven years.
A finding of gross misconduct does not necessarily mean that dismissal should be an automatic sanction. It can still be found to be an unfair dismissal if a number of mitigating factors are not given due consideration.
Our representatives are experts in handling difficult, challenging and seemingly impossible cases to win.
During the disciplinary investigation stage of the process Sarah was invited to attend an investigation meeting. At the meeting she was shown CCTV of the incident.
The footage showed a male colleague carrying out bag searches before Sarah approaches. She has a discussion with him before turning around and going back into the building.
During her interview Sarah insisted that she did not take an old hard drive. When it was pointed out to her that a stock check revealed it was missing, she broke down in tears, apologised and admitted taking it. Sarah was suspended from work.
Sarah later returned the item and she was invited to attend a disciplinary hearing to face an allegation of theft.
At the hearing our representative argued that there were significant mitigating factors in the case. He pointed out that Sarah had always sought her manager’s permission to take any discarded items and he had told her in a text message ‘never a problem, just have a word with me.’
At the time of the incident Sarah’s manager was off work ill. It was highlighted that there was not a formal procedure for staff to follow in these circumstances. It was argued that given Sarah’s arrangement with her manager she had a reasonable expectation that she would be allowed to take the item.
Sarah admitted panicking and being untruthful at first. It was explained it was because she had not informed her manager, and feared she would be in trouble.
To support Sarah’s case examples were provided of numerous occasions when she had alerted the company to missing items. Sarah had also been subjected to countless bag searches without incident, which was used to argue this was a one-off.
Significant factors outside of the workplace were also relevant. At the time Sarah had just discovered she was pregnant with her first child, having lost a baby previously in the early stages of pregnancy. She was understandably worried, stressed and anxious and had not yet informed anyone apart from her partner of the news.
Shortly before the incident she had also been evicted from her home, was struggling to find a suitable place to live and also had significant debts.
Our representative explained and provided evidence to demonstrate that Sarah had now sought expert help with her housing and money woes. She had hoped to sell the discarded hard drive to help pay off some of her debt.
It was explained that Sarah bottled things up believing she could cope, but it had become too much and caused her to act out of character, but she was now getting the appropriate support.
Sarah’s exemplary disciplinary record, previous good character and remorse and regret were also highlighted.
The company accepted the mitigation and Sarah received a final written warning, which she acknowledged she deserved.
Sarah had a something to celebrate some months later when she became a mother for the first time.