Building a successful case to fix the damage caused by a disciplinary outcome
Published 02 November 2022
When Viktor was caught on camera breaching health and safety rules at work he understandably believed his fate was sealed.
The builder was pictured working at height on the exterior wall of a semi-detached residential property without a safety harness.
A disgruntled former employee, who made an unsuccessful claim for unfair dismissal after being fired, took the snap and sent it to the firm where Viktor had worked for six years. He was immediately suspended from work.
Viktor apologised, explained it was a momentary lapse, said he worked for less than a minute without his harness and it was while under extreme pressure and struggling to cope.
Devastated Viktor was dismissed following a disciplinary hearing. It seemed difficult to argue with the decision, as Viktor had committed an act of gross misconduct.
When Viktor contacted our Employee Support Centre he wanted to know if it was worth submitting an appeal.
Our representative reviewed the case with Viktor, and was keen to understand more about the ‘extreme pressure’ Viktor said he was under at the time and why he was ‘struggling to cope.’
Viktor was reluctant at first to discuss the reasons. He was adamant he had made a mistake. He just wanted to say sorry and return to work. Viktor was willing to accept a final written warning, which he acknowledged he deserved
Our representative explained any mitigation in regards to the issues he was struggling with at the time could be crucial in helping him to get his job back.
Viktor did eventually open up after feeling reassured by our representative. He subsequently submitted a disciplinary appeal on behalf of Viktor.
The appeal was on the grounds the decision was unduly harsh given mitigating factors, which were not reasonably explored or considered.
Our representative told the disciplinary appeal hearing a finding of gross misconduct should not have meant dismissal was an automatic sanction. He referred to the fact it was evidenced Viktor had said he was under extreme pressure and struggling to cope at the time.
The notes of the disciplinary hearing and those taken during a fact-finding meeting, held with Viktor during the disciplinary investigation, were presented to show he had touched on difficulties and challenges he was facing at the time.
Our representative explained this referred to matters both inside and outside of work, which undoubtedly impacted on his performance, state of mind and provided significant mitigation in the case.
The mitigation included that he was receiving medical attention for stress and anxiety which was triggered by, and exacerbated by, repeated IVF failure he and his wife had suffered, which he had kept to himself out of embarrassment and fear given the nature of the trade he worked in.
And because of staff shortages he had been pressured and left to clear a backlog of jobs with which he was struggling.
During the same time he lost a good friend, who was also an ex colleague, unexpectedly which the business knew about and gave him time off for. Our representative said on reflection Viktor returned to work too soon because he knew the company was short staffed and he wanted to help out.
The mental and emotional impact of these matters were fully explained to the appeal hearing chair. It was asserted by our representative this led to Viktor briefly acting out of character, for which he was remorseful and apologised.
It was pointed out the photographic evidence, which was one picture, captured a split second in time which was admittedly wrong, but did not show how quickly Viktor corrected his error.
Our representative told the hearing Viktor in being open about his mental health struggles for the first time was now getting the support he needed. It was explained he had also taken appropriate learning from what occurred, which should provide an assurance he would not be involved in a similar matter in future.
Following the conclusion of the appeal hearing, Viktor was later reinstated with a final written warning.