When an employer dismisses an employee citing gross misconduct, they will argue if a case arises, that the employee’s actions constituted gross misconduct and this caused the trust and confidence in the employment relationship to break down irretrievably. The employer will argue there were substantial grounds justifying the dismissal.
Unfair Dismissal as Defined by the Act:
What is Unfair Dismissal
- Once a dismissal arises it is considered to be an unfair dismissal unless there were substantial grounds justifying the dismissal.
The employer is entitled to argue the dismissal was fair and proportionate due to the conduct of the employee.
Gross Misconduct – Dismissal & Procedural Fairness
When an employer has made the ultimate decision to terminate the employment of the employee, they should implement procedural fairness into the process prior to the termination.
Every employee will know what fairness is and isn’t. They will feel it.
Questions for employees to ask themselves when they receive a letter indicating the employer has a serious issue regarding allegedly grave conduct by the employee:
- Did the employer specifically state in clear simple language what the complaint is ? The keyword is detail. A bald statement impervious to obtaining a full understanding of what the complaint is with detail is unfair, in our opinion. If one was to transfer it to a court setting, the least the defendant would want to know is what is the detail of the charge against him/her is – ie the when, the where, and who was there allegedly etc.
- Did the employer ring the employee or write to the employee noting a serious issue has arisen and an investigation is due to take place?.,
- Did the employer tell the employee of the specific breaches of conduct and company policies ?.
- Who are the investigators ? Are they impartial ?.
- Did the employee get the opportunity to defend himself/herself ?.
- Was he/she given a right to be represented at the disciplinary meeting ?.
- Is there fairness in the investigation process ?.
- Was the disciplinary process run fairly ?.
- Was there an appeal mechanism etc. ?.
Once a case comes before an Adjudicator, each party must give evidence regarding the investigation-disciplinary procedures that took place. An employer should follow their own published company investigation-disciplinary procedures, but commonly this does not happen.
A useful statement of the legal framework in these cases was set out in JVC Europe Ltd. -v- Panisi  IEHC279, the High Court where it was stated “The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify dismissal”.
In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required in the context of Section 6 of the Unfair Dismissal’s Act 1977 as follows:
“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.
Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.
Gross Misconduct – Dismissal & Right to Fair Procedures :
An employee has an implied contractual and constitutional right to fair procedures as grounded in common-law, Irish caselaw e.g. Re: Haughey (1971) IR217 and statute i.e. S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures).
Where a question of a dismissal being unfair is a live issue, in its judgement in Frizelle v New Ross Credit Union Ltd. (1997) IEHC 137, the High Court provided a list of “premises” which must be established to support an employer’s decision to terminate employment for misconduct, being as follows;
“1. The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.
2. Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
3.The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4.The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
5.The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint and of the gravity and effect of dismissal on the employee.
Put very simply, principles of natural justice must be unequivocally applied.
Narrow Interpretation of Misconduct Behaviour
What constitutes Gross Misconduct ?
The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal.
In Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) it states:
‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct.
We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category.
If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’
Frequently Asked Questions
What constitutes gross misconduct ?
We have answered this in the paragraphs above.
This is dependant on the situation facts and an employees record should be taken into account. If the employer is aggrieved at conduct of the the employee, the employee still has a right to a fair investigation of the facts, and a fair and impartial disciplinary process and the sanction ie if it is dismissal, this decision must be proportionate to the conduct complained of.
No, dismissal is the last and ultimate sanction an employer can choose. There are vary other lessor severe sanctions available to the employer and the employer must be proportionate in the sanction decision.
It is important to assess if the proper procedures were followed prior to the decision to dismiss. Was an investigation carried out ? for example.
Was the person allowed to prepare for the investigation, defend themselves, have a witness as to fact etc. and if a decision was made a disciplinary hearing to dismiss, was there a right of appeal afforded to the person, for example.
An example could be a hospital staff worker leaving patients data unsecured, or it could involved theft, or it could involved being intoxicated at work, or a breach of health and safety rules, for example.
If an employer should conduct an investigation into the facts, what happened, and how it happened which should be conducted fairly and with the intention to establish what is the truth of the situation. The employer should also conduct a fair and impartial disciplinary procedure, if its determined from the investigation outcome there is a case to answer. The employee should review each step in the companies published procedures handbook.
If an employer concludes there was gross misconduct, they must have evidence in relation to same. Then the question is what is the evidence ?. What is the evidence of the employee, the witnesses and is there CCTV for example. Gross misconduct involves conduct that is of a serious nature, which is not a minor matter nor is it a performance issue. Employers must be clear on the facts before embarking on any serious sanctions against the employee.
Employers should provide appeal mechanisms in respect of the disciplinary procedure, for example. If an employer furnishes a letter to an employee which indicates the employee’s employment is due to be dismissed following the outcome of the disciplinary process, the employee should be afforded a right of appeal.
Disclaimer for Gross Misconduct & Dismissal Article
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be obtained from a solicitor prior to relying on anything in this article.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.
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