Sandaza Sacked By Rangers – “Gross” or “Serious” Misconduct? – And What Happens Next?

And so Francisco Sandaza’s fears came to pass.

The Sun had reported on 30th March:-

FRAN SANDAZA was last night seeking legal advice amid fears his Rangers career is over. The striker was yesterday suspended for a second week after a meeting with Ibrox bosses.

Gers are still investigating how Sandaza was duped into revealing contract details during a recorded conversation with a spoof agent. During the call the former Dundee United and St Johnstone ace also insisted he’d be willing to leave the Division Three club for more money.

Injury-hit Sandaza is taking advice from the Professional Footballers’ Association’s legal team as it’s believed Ibrox chief Charles Green is keen to offload the Spaniard.

Boss Ally McCoist said yesterday: “Sandaza isn’t back in the squad. He’s still suspended, pending an internal investigation, which is continuing. I’ve got no idea how long that will last. Obviously, I’d think it would be in everyone’s best interests if it’s sooner rather than later. But I couldn’t put a timescale on it. We will find out what’s happening and then we move on.”

It’s expected Gers will now offer Sandaza — who’s only scored twice this season — a cut-price deal to leave the club. But it’s unlikely he would accept and will seek further legal assistance if Rangers insist on showing him the exit door.

Last night Rangers released the following statement:-

RANGERS announced today that the Club has decided to terminate its contract with Francisco Sandaza. The player has been advised of the situation.

Francisco spoke at length to someone posing as an agent and engaged in a conversation which the Club believes to be a material breach of his contract of employment.

The player was suspended but after careful consideration and a hearing with Francisco and his representatives, the Club, and our advisors, believe that dismissal is the appropriate course of action.

The termination is subject to the right of appeal under SFL rules and there will be no further comment from Rangers on this issue.

It is very rare for a football player to be dismissed, especially in a situation where, by implication, gross misconduct has been established by the employer.

The main reason for this is financial. If a football team dismisses a player, then its hold over the player in the form of his registration would be lost as well. The player is then able to sign elsewhere as a free agent. The former employer would lose any right to a transfer fee.

Normally dismissal is only applied to players in lower division teams where the players will have no re-sale value.

High profile, or high value, players are rarely sacked. For all of Mario Balotelli’s much publicised nonsense, Manchester City, even the rich as Croesus Manchester City, did not sack him, for fear of losing millions of pounds.

For all his escapades, Manchester City chose not to sack Mr Balotelli

For all his escapades, Manchester City chose not to sack Mr Balotelli

The only one I can think of who was sacked was Adrian Mutu. He was caught in a targeted FA drugs test. He tested positive for cocaine and was sacked by Chelsea.

However Chelsea pursued Mr Mutu himself seeking damages for breach of contract. The case is still not resolved, and is presently before the American courts! The article linked here, by Romanian lawyer Smaranda Miron, gives the details of Mr Mutu’s travails with Chelsea.

Mr Mutu still owes Chelsea an enormous amount of money

Mr Mutu still owes Chelsea an enormous amount of money

The bottom line is that Chelsea have been awarded damages of €17 million but even now, eight and a half years later, not a penny has been paid to Chelsea.

As for Mr Sandaza, he was signed by Rangers on a three-year contract in August 2012. He signed despite interest elsewhere. He was quoted as saying:-

“I had some offers from the Second Division in Spain and from Cyprus and Greece, but Ally called me a week ago and said to me about the project here.

“It’s a long project and we start from zero, but I’ll go for it and I think we will come back soon and I will do my best to be a part of that.”

Mr Sandaza though is not around for the long project, subject to any appeal he might pursue.

Mr Sandaza in happier times with Rangers

Mr Sandaza in happier times with Rangers

Any external appeal, to the SFL, or to an Employment Tribunal, is NOT asking the decision-maker what it would have done. Instead the question is whether or not the decision to dismiss is “fair”.

A very helpful case analysing the issues regarding gross  misconduct is Graham v The Secretary of State for Work and Pensions (Jobcentre Plus) [2012] EWCA Civ 903 (05 July 2012). The decision from the English Court of Appeal can be read in full here.

Graham v The Secretary of State for Work and Pensions (Jobcentre Plus)

This case looked at the difference between “gross misconduct” which entitles an employer to summarily dismiss an employee and “serious misconduct” which does not.

Mrs Graham (G) an Advisory Service Manager in a Jobcentre with a 30 year unblemished record with her employer, was summarily dismissed for what her employer claimed was “gross misconduct”. G helped Mr Moss (M), an acquaintance of her daughter, who had a difficult family background and was struggling to live on benefits, to find a job. Having investigated a number of allegations, G’s employer found that G had:-

  1. gained access to an acquaintance’s records;
  2. dealt with of job search interviews on behalf of an acquaintance;
  3. breached security by taking M into the staff canteen; and
  4. left her computer and smartcard unattended whilst allowing M access to her computer.

All of these were potentially in breach of the employer’s “Standards of Behaviour”. G’s employer found that G’s conduct amounted to “gross misconduct” and dismissed her without notice.

She brought a claim for unfair dismissal which was upheld by the Employment Tribunal. When the Employment Appeals Tribunal overturned the ET’s decision, she successfully appealed to the Court of Appeal..

The Court stated that the position is that, in considering the fairness of a misconduct dismissal, the court must ask itself three questions:

  1. Did the employer carry out a reasonable investigation?
  2. Did the employer believe that the employee was guilty of the misconduct complained of?
  3. Did the employer have reasonable grounds for the belief?

Whilst the Court  of Appeal, in this case, answered “yes” to the first two questions, in answering the third question, the Court asked itself whether the employer had reasonable grounds to believe G was guilty of “gross misconduct” to which it found the answer to be “no”.

The Court found that G’s conduct amounted to “serious misconduct” under her employer’s disciplinary process but did not amount to “gross misconduct”. Her summary dismissal was therefore outside the band of reasonable responses in the circumstances. (The Court also took into account G’s long service and exemplary record) and was therefore unfair.

The Court concluded:-

The Tribunal was in my judgment entitled to find that to respond to such conduct as was established by instantly dismissing an employee with 30 years unblemished service was outside the range of reasonable responses.

This emphasises that there is a difference between gross and serious misconduct and that this difference can impact upon the fairness of a misconduct dismissal.

“Gross misconduct” is generally accepted as being conduct so serious as to justify dismissal without notice or payment in lieu of notice, which could be for a first time offence. There is no statutory definition of what constitutes gross misconduct and to a certain extent it is for employers to decide whether misconduct is to be considered as “gross”, “serious” or otherwise. In determining what amounts to “gross” misconduct, context is paramount. What amounts to gross misconduct should be considered in relation to the business and the role of the employee. ACAS provides a list of various matters which will usually be considered to be gross misconduct:

  • Theft
  • Dishonesty
  • Malicious damage
  • Fighting/assaulting another person
  • Serious incapability through alcohol or illegal drugs
  • Endangering the safety of others by breaching Health and Safety Laws
  • Fraud
  • Gross negligence
  • Serious insubordination

An employer may consider an instance of misconduct to be serious, but is it “gross” misconduct? The question for employers in these circumstances is this – is the conduct so serious and damaging to the business that it breaks the employment relationship between employer and employee? Does it make a continued working relationship and trust impossible? Was it a deliberate and wilful breach of the contract and/or does the conduct amount to gross negligence?

One relevant factor in Mrs Graham’s case was that, when the allegation came to light, she was not suspended, but instead moved to work elsewhere, with her retaining access to her computer system. This was seen by the Court as indicating that there had not been the required breakdown of the employer/employee relationship in this case.

Where conduct falls short of gross misconduct, summary dismissal would most likely be considered to be unfair, particularly where the employee has a long length of service with the employer and an otherwise unblemished record. In instances of misconduct it would be usual to give the employee a written warning, with a subsequent act of misconduct in a set period normally resulting in a final written warning.

How Should an Employer Decide if Dismissal is an Appropriate Response to Conduct?

In determining whether dismissal was a fair sanction in all the circumstances, the tribunal will consider the questions below. Employers should consider these questions in determining whether dismissal is an appropriate response to the conduct in question.

  1. Does the employer’s disciplinary procedure indicate what the likely penalty will be?
  2. Is the proposed sanction something that the employee knew was a possible outcome?
  3. How serious is the offence?
  4. What penalty has been imposed in similar cases in the past?
  5. Whether the behaviour of other employees is acceptable; is this employee being singled out?
  6. Is there enough evidence present to warrant the penalty?
  7. Are there any special circumstances which have a bearing on the severity of the penalty decision?
  8. Does the employee have a current disciplinary record (i.e. live warnings)? Is there a pattern of behaviour?
  9. Employee’s attitude – are they remorseful and unlikely to repeat the behaviour? Or, are they defensive and do not feel they have done anything wrong?
  10. Employee’s general record – what is their position? What is their length of service? What is their record like?
  11. Is the sanction reasonable in all circumstances?

How Does This Apply to Mr Sandaza?

Looking at Mr Sandaza’s situation, how likely is it that the contract or Employee Handbook spells out summary dismissal as a likely penalty for saying things he ought not to have said to a hoaxer?

Is he being “singled out”?

How serious an incident is this?

From what is publicly known (and we are not privy to the course of the investigative process) the decision seems to be heavy-handed. One wonders precisely what part of Mr Sandaza’s offence has led to dismissal.

Is it being duped and thus embarrassing the team?

Is it appearing to suggest he would be happy to by-pass the club to arrange a transfer?

Is it admitting that he came to Rangers for the money? (Unlike every other employee in the world who only does their job for the love of it?)

This decision comes against the background of Mr Green looking, it appears, to cut costs. Kevin Kyle left by mutual consent. Chief Scout Neil Murray, following his own suspension, has departed by agreement. Highly-paid goalkeeper Neil Alexander seems, from newspaper reports anyway, to fear being shunted out the Ibrox door, or if retained, at a far lower wage than he is presently on.

Charles Green seems to be in "Terminating" mood

Charles Green seems to be in “Terminating” mood

Oops! Wrong picture!

Oops! Wrong picture!

Is the value to Rangers of not having to pay Mr Sandaza worth more than they might get if they sold him? (And of course I am sure that Rangers did not consider such an issue in determining the appropriate outcome of the investigation).

What Will Happen?

To quote the great Murray Walker, “I don’t make predictions, and I never will!”

I will make an exception here.

I suspect Mr Sandaza will appeal. Having been dismissed, he will  not be paid whilst his appeal is ongoing. By the time an SFL panel considers his appeal it is likely that the build-up to next season will be in full swing and if he finds a new club, then he will reach an agreement with Rangers to drop his appeal and maybe get a few weeks’ salary as a “going away” present.

The matter would only make it to a court or Employment Tribunal if he was unable to find a new employer. In that case, what would he have to lose? In addition, he could offer in evidence the clubs who were looking to sign him last summer.

It would be very interesting to see precisely how Rangers arrived at the conclusion that Mr Sandaza was guilty of “gross misconduct” justifying his dismissal. Unless the matter heads to a Tribunal or court we are unlikely ever to find that out.

Posted by Paul McConville

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151 Comments

Filed under Employment Law, Rangers

151 responses to “Sandaza Sacked By Rangers – “Gross” or “Serious” Misconduct? – And What Happens Next?

  1. Frank Galvin

    Thanks Paul, and right on time too!!

    My nephew is in a spot of bother at work after telling a threatening and abusive guy to “F-Off” in a parking dispute in his employers car park.

    This article was very helpful in distinguishing gross from serious!!

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