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Gross Misconduct

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  • Gross Misconduct

    I have tried to keep the following as brief as possible while still retaining all pertinent facts.

    For the past ten years, my wife has worked at an accounting partnership in the billing department. Her job is to bill work done by the fee earning partners.

    The basic outline of the process is as follows
    1. The accountant completes the work for the client and advises the secretarial team that the work has completed, what the work was and what the fee should be via a form
    2. The secretarial team collate all the necessary paperwork and submit it to the accounts department
    3. The accounts department bill the client, chase any outstanding bills, then pay the accountant the billed fee minus a 15% cut to cover the admin costs

    There is a three month contractual deadline starting at the completion of the work, after which the fees, if not billed, will no longer be payable. It can be seen from the above that there are 3 people involved in the billing process, each of which has to complete their work in a timely manner to ensure that the fees can be billed. There have been a number of problems over the years where the process hasn’t completed in time and fees have been lost. The causes of this are many and varied but include the accountants not completing their form, the secretaries not submitting the paperwork to the accounts room, the secretaries not updating the work flow system that the work packet is complete (which would alert the accounts department to the start of the three month countdown) and various problems within the accounts department itself.


    Historically, attempts to resolve the out of time bills have been undertaken by the Admin Director because the two people in the accounts department were already hard pressed to process the volume of non-contentious bills. Various attempts were also made to implement systems that would prevent the three month deadline being missed in future. These were met with varying degrees of success but systemic problems remained. There are therefore two elements to the problem: A systemic problem that allows work packets to go unbilled and a managerial problem of responsibility for the those work packets that miss the deadline


    A year ago the partnership merged with another partnership. In addition to the upheaval associated with any merger, the post of Admin Director was made redundant and the incumbent post holder left. The responsibilities of the Admin Director were absorbed into a newly created role of Chief Finance and Administration officer. The merger resulted in the number of accountants increasing from 40 to 110. There was no corresponding increase in the number of people in the accounts department.


    A few months after the merger, my wife’s colleague left leaving my wife to process all the bills herself. At this point she started working 12 – 14 hour days to get through the work load. Several months after that two more people were recruited to work in the accounts room followed by a third person to handle the admin (photocopying etc.). However, my wife is still having to work 12 -14 hour days to get through the work load because, of the two new recruits, one is incompetent and is now only allowed to bill the most simple situations and the other is lazy. My wife has raised the laziness with their mutual boss the Chief Finance and Administration officer, who has agreed that there were concerns as to his performance .


    Out of the blue my wife received a letter from one of the accountants advising her that she was being investigated for gross misconduct because there were 150 bills that had passed the three month deadline. She wasn’t advised who had made the allegation nor what the specifics of it were. At the investigative meeting the investigator was extremely aggressive and refused to listen to my wife’s attempts to explain the process but instead repeatedly referred to her job description and said that she was responsible and it was therefore all her fault. She handed a statement and a large amount of documentary evidence in support of her case to the investigator. This documentation included the job description for the Chief Finance and Administration officer, which makes clear that it is this person that is ultimately responsible for all billing. In return she got the work flow system references for the 150 unbilled work packets


    The report of the investigation has now been completed and the investigator has decided to recommend that she face a disciplinary hearing for gross misconduct. He has concluded that it is my wife and my wife alone that is entirely responsible for the 150 bills not being done in time and has ignored both the written statement that she supplied and all the evidence that supported it. The tone of the report is extremely nasty and, I presume in an attempt to justify a gross misconduct charge, makes a number of unsubstantiated slurs as to my wife’s integrity and ability to do the job. My wife has done some analysis of the 150 work packets and discovered that less than half are unbilled. The remainder are a combination of either billed and paid or closed in preference for another work packet under which all the clients concurrent work was billed (so as to produce one big invoice rather than a number of small invoices). Of those that are unbilled, most are stuck in the secretarial department but, for reasons too complex to go into here, all will be paid.


    I have never been involved in anything like this and, although learning fairly quickly would appreciate some tactical advice as to how to defend this. My initial thought was to raise a grievance against the investigator for bias and failing to investigate properly but I suspect that this may be better saved for the tribunal that appears to be the inevitable result of all this: My gut feeling is that, post-merger, my wife’s face no longer fits and she is being forced out with the disciplinary process being used as a cover. This is ironic really because if they had made her a generous offer to go quietly I’m sure she would. I’d appreciate any help or advice that anyone is able to give here, particularly anyone with experience and a view on tactics. For my own inexperience part I don't view the allegations (whatever they are) as being a disciplinary matter at all and certainly not one of gross misconduct
    Tags: None

  • #2
    Re: Gross Misconduct

    typical

    merger, then disciplinary, how many times has that happened, one to many.

    now to the knuts and bolts

    12-14 hours a day working, do you have pay/time sheets to back that up
    have you opted out of the working time directive

    how was the disciplinary conducted
    were you given advanced notice of the hearing
    were you given the oportunity to have a collegue/rep in attendance
    were minutes taken of the meeting and were you given a copy of those minutes (disciplinary, not fact finding interview)


    HAS SHE HAD THE FULL DISCIPLINARY MEETING YET

    i think that lot above for starters

    Comment


    • #3
      Re: Gross Misconduct

      We haven't got evidence for all the excess hours because she was told that she wouldn't be paid for them and she's the sort of person that wouldn't claim anyway, as she's always willing to help and make sacrifices for the greater good of the firm. We do have a record of some hours when it was agreed that she could start taking time off in lieu but I'm not sure how many of them are included. I don't know about the working time directive - I'll ask.

      We're still waiting to be advised when the disciplinary hearing is to be held but are pressing for it to be put back to prepare a defence and for a solicitor to be allowed to accompany her. The hand book allows for only a staff member or union rep unless there is prior permission.

      A colleague accompanied her into the investigative meeting at which notes were taken, we have been given a copy of the minutes and she has agreed the minutes to be an accurate record.

      Comment


      • #4
        Re: Gross Misconduct

        We talked about it again last night and, because she needs to sign in and out of the building (which is wholly occupied by the practice), there is a record of all the hours that she has worked, although this is on paper rather than electronic. She doesn't recall opting out of the working time directive but cannot say for certain that she hasn't.

        We're struggling to understand where all this is coming from but there is a management committee that are responsible for staffing issues. All decisions to hire and fire must, we think, go through the management committee. If we ask for the minutes of the meeting where the decision to charge my wife with gross misconduct was taken, are they obliged to disclose them?

        Comment


        • #5
          Re: Gross Misconduct

          My gut feeling is that, post-merger, my wife’s face no longer fits and she is being forced out with the disciplinary process being used as a cover.
          After 10 years, her redundancy payment would be a fair amount. If sacked for Gross Miscounduct, they pay nothing.

          Originally posted by bedlington83 View Post
          My wife has done some analysis of the 150 work packets and discovered that less than half are unbilled. The remainder are a combination of either billed and paid or closed in preference for another work packet under which all the clients concurrent work was billed (so as to produce one big invoice rather than a number of small invoices). Of those that are unbilled, most are stuck in the secretarial department but, for reasons too complex to go into here, all will be paid.
          This is the key - prove that the allegation regarding the 150 packets is complete nonsense.

          Act quickly to secure the evidence - documents have a habit of disappearing.

          This is ironic really because if they had made her a generous offer to go quietly I’m sure she would. I’d appreciate any help or advice that anyone is able to give here, particularly anyone with experience and a view on tactics.
          (1) You prove that the allegation is entirely unfounded. (2) You then show that she has in fact gone the extra mile to clear up their mess. (3) You intimate that the allegegation is malicious in order to avoid a redundancy payment.

          Ensure that they understand that this will be fought to the bitter end. Don't hesitate, don't hold back - drive the knife in as hard as you can. Then, when they perceive that they are on a loser, you can hold out an offer: no legal action, go quietly, with a really good payoff.

          This actually happened to me. Management wanted me gone, so they fabricated a disciplinary against me. Faked documents, vanished documents, collusion, threats, smears - the works. Unfortunately for them, I am an ex-union official with an interest in advocacy. I smashed them to pieces, and then offered a deal. I left, but it cost them dear.
          Last edited by enquirer; 7th November 2012, 10:25:AM.

          Comment


          • #6
            Re: Gross Misconduct

            Thanks for the advice Enquirer. I must agree that my immediate reaction is exactly that you suggest - go for the jugular straight away as aggressively as possible. However, I am not allowed to take part in the proceedings and my wife is completely non-confrontational so this approach may not be suitable for her. I think its important that we get some professional help because I can see that a number of witnesses will need to be aggressively cross-examined, either in the disciplinary or the subsequent tribunal.

            Proving the allegation is false is either easy or difficult. We are unclear whether the allegation is for causing an actual "major financial loss" (from the booklet guidance for new employees) or just for the potential loss because some of the packets are past the deadline. If its for an actual loss, the proof is easy - there hasn't been one. If its for the potential loss its more difficult because there is no clear delineation of work and no documented work methods. The accounts assistants work their way through a communal pool of outstanding work, some of which never leaves the secretarial department so where does the blame lie? If you were coming at this with no prior knowledge you could say that the accounts department are responsible for billing the fees, the fees weren't billed therefore the accounts department is to blame. Because the only other accounts assistant that was there at the time has now left, there is only my wife remaining, therefore it's all her fault. I believe that this is the "logic" that they have gone through. It isn't easy to disprove

            I don't think the motive is to avoid a redundancy payout but, if the avoidance of redundancy is the reason, it will be because, having made her redundant, they need to employ at least one accounts assistant to replace her, and that gives us unfair dismissal straight away. Having said that, we don't know what's started all this, who is behind it or what the real motive is. That's why we'd like to see the minutes of the management committee meeting that recommended a charge of gross misconduct

            Comment


            • #7
              Re: Gross Misconduct

              Originally posted by bedlington83
              I think its important that we get some professional help because I can see that a number of witnesses will need to be aggressively cross-examined, either in the disciplinary or the subsequent tribunal.
              Make it clear to them that they will, each and every one of them, be aggressively cross examined. They really won't like that, and it may be enough to bring it to a halt. If it goes ahead, then being what they are, there will be collusion - hopefully quite amateurish and therefore easy to expose.

              We are unclear whether the allegation is for causing an actual "major financial loss" (from the booklet guidance for new employees) ...
              You have already shown that you can defeat this, viz " If its for an actual loss, the proof is easy - there hasn't been one".

              ... or just for the potential loss because some of the packets are past the deadline.
              An allegation of potential loss is purely speculative, and as such, worthless.

              If they allege incompetence, that's another matter, but they haven't. Even if they did, if someone is that useless ... how come they were employed for 10 years without any previous disciplinaries or 'advice given'? That won't hold water either.

              ... there is no clear delineation of work and no documented work methods.
              They have no clearly defined work process demonstrated by documents, training manuals or records? How can they blame your wife for anything when they can't show who should be doing what, and when they should be doing it?

              That's why we'd like to see the minutes of the management committee meeting that recommended a charge of gross misconduct
              If it goes to law they can be forced to disclose those documents. They would probably find that prospect disconcerting.

              Another avenue of attack is internal procedures. Have they followed their own internal processes for disciplinaries? There should be documents for these. If they haven't, they're in deep trouble straight away.

              Comment


              • #8
                Re: Gross Misconduct

                Top comments Enquirer, thank you - I particularly like what you say about the work processes as it's not something I'd thought about before. The internal procedures is a non-starter I'm afraid. The disciplinary process is documented, goes beyond that detailed in the ACAS code of practice and has so far been followed.

                Comment


                • #9
                  Re: Gross Misconduct

                  Originally posted by enquirer View Post
                  They have no clearly defined work process demonstrated by documents, training manuals or records? How can they blame your wife for anything when they can't show who should be doing what, and when they should be doing it?
                  I've had a think about this and, although tenuous, I think they are trying to equate the accounts assistants job description, which includes phrases like "Bills end clients for work done" & "Ensures timely receipt of billed fees" with process definitions. E.g. "You are an accounts assistant, you are responsible for ensuring timely receipt of billed fees, the invoices haven't been sent in time, therefore its all your fault and a gross dereliction of duty. We're going to ignore all the other people with exactly the same job description as you and the fact that your boss's job description includes responsibility for all billing and invoicing because it is you that we are investigating not them". It feels like we're arguing with junior school kids at times

                  Comment


                  • #10
                    Re: Gross Misconduct

                    How usual is it for someone to be accused of gross misconduct, yet not suspended pending the disciplinary hearing? The ACAS guidance document Discipline and Grievances at Work (here: http://www.acas.org.uk/CHttpHandler.ashx?id=1043) on page 17 under Establishing the Facts suggests that it is normal practice - "There may be instances where suspension with pay is necessary while investigations are carried out. For example [...] in gross misconduct cases or [...]"

                    The other thing that may be relevant is that the decision to investigate my wife for gross misconduct was (we think) taken by the management committee. We don't know how many of the accountants are on the committee but doubt its more than 12 out of 100+. The accountant that conducted the "investigation" is on the management committee and was present when the decision was taken. Surely it cannot be right that someone who was party to the decision to accuse is made responsible for the investigation?

                    Comment


                    • #11
                      Re: Gross Misconduct

                      gross misconduct is the wrong charge as well

                      gross misconduct is conduct on the part of an employee which is so bad that it destroys the employer/employee relationship.

                      Other lesser offences, often relating to work and work performance - for example poor timekeeping, absenteeism, use of workplace facilities, personal appearance, negligence or sub-standard work - do not usually amount to gross misconduct. However, you may want to specify that repeated minor misconduct (for example, persistent poor timekeeping) can, cumulatively, amount to a more serious offence.

                      most employers would agree that the following things are likely to amount to gross misconduct:
                      • Intoxication at work;
                      • Violence;
                      • Threatening behaviour;
                      • Theft;
                      • Breaches of trust;
                      • Sexual harassment or serious issues of discrimination (potentially)
                      • Commission of crime.

                      Comment


                      • #12
                        Re: Gross Misconduct

                        A quick question, are the accountants from the old firm (prior to merger) involved with the proceedings in any way?

                        Comment


                        • #13
                          Re: Gross Misconduct

                          Originally posted by miliitant View Post
                          gross misconduct is the wrong charge as well
                          Indeed, but I'm not sure whether to argue that yet or allow it to be a bit more rope with which they can hang themselves at the tribunal. It all depends on what's driving this. If they're determined to get her out no matter what then there's very little we can do to stop it (and would she want to stay anyway)? It might be tactically better to play it straight for now and resist the temptation to jump on whatever we can as soon as we can. Its a question of tactics I guess

                          Comment


                          • #14
                            Re: Gross Misconduct

                            Yes, and it doesn't stop to amaze me that if your wife who is doing most of work what's going to happen once she left? One hears so many stories where bosses seem to start taking stupid pills under prescription " how to ruin your enterprise in two easy lessons". As mentioned before, the principle of rather do a disciplinary procedure than pay redundancy, because often this kind of things happen to old employees, on good wages etc... so short term savings often lead to a whole lot of unpleasantness and then a huge payout. But of course they are accountants.... Go figure

                            Comment


                            • #15
                              Re: Gross Misconduct

                              Originally posted by alham View Post
                              A quick question, are the accountants from the old firm (prior to merger) involved with the proceedings in any way?
                              Interesting question and a difficult one to answer. None of my wife's former colleagues are obviously involved but there's so much that we are having to extrapolate and guess at that its difficult to be certain about a lot of things. If my wife previously worked for accountancy A and this merged with accountancy firm B to form accountancy firm C then the senior partner of C, who instigated the initial investigation, came from B and the investigating officer also came from B. We do not know the composition of the management committee but believe it comprises accountants from both A and B. We don't know who made the accusation of gross misconduct so do not know whether they came from A or B. We also don't yet know the composition of the disciplinary panel

                              Comment

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