Unfair Dismissal & Gross Misconduct

Your Questions Answered

Volume 1.

What is classified as Unfair Dismissal ?

The Law in relation to unfair dismissal in Ireland is laid out in S.6 of the Unfair Dismissal Act 77(as amended) which states:

The dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Therefore a dismissal from employment is considered by law to be unfair, unless the employer can show there were ‘substantial grounds’ for the dismissal. So, the duty or onus is on the employer to be able to prove that there were substantial grounds justifying their decision to dismiss.

What do you get for Unfair Dismissal ?

There are 3 different types of remedies available to an applicant who wins an unfair dismissal case, namely:

aRe-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

bRe-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) If the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed as is just and equitable having regard to all the circumstances, or

(c)    if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.

How do I take my Employer to a Tribunal for Unfair Dismissal ?

The forums used to be called Tribunals, but the forum now is the Workplace Relations Commission, which is the forum who deals with employer-employee disputes.

You must complete the Application form found on the Workplace Relations Commissions website, and you must submit your Application within 6 months of the dismissal, or your claim will be out of time and statute barred.

What happens if you win an Employment Tribunal ?

This is answered above. There are 3 different forms of remedies available.

Are Employment Tribunal Records Public ?

Concluded cases are published on the Workplace Relations Commissions website, but the participants names are anonymized in the vast majority of cases, and nearly all employment law related cases in the Workplace Relations Commission are held in private.

What are the automatically unfair reasons for dismissal ?

The answer to this is set out in S.6 of the Unfair Dismissal Act 1977(as amended) which gives the reasons whereby a dismissal will be automatically unfair, which are:

  • The employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971.
  • Being a member of a trade union which made a request referred to in section 2 (1) of the Industrial Relations (Amendment) Act 2001.
  • Having provided evidence or other information or assistance to any person, for the purposes of the examination of that request by the Labour Court or in respect of an investigation made by it under that Act pursuant to that request.
  • The religious or political opinions of the employee.
  • The employee having made a protected disclosure.
  • The employee has civil proceedings in being whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness.
  • There are criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness.
  • The exercise or proposed exercise by the employee of the right to parental leave, force majeure leave under and in accordance with the Parental Leave Act, 1998  or carer’s leave under and in accordance with the Carer’s Leave Act, 2001.
  • The race, colour or sexual orientation of the employee.
  • the age of the employee.
  • the employee’s membership of the travelling community.
  • the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding etc.
  • The exercise or proposed exercise by the employee of the right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence.
  • the exercise or contemplated exercise by an adoptive parent of the parent’s right under the Adoptive Leave Acts 1995 and 2005 to adoptive leave or additional adoptive leave or a period of time off to attend certain pre-adoption classes.
  • The exercise or proposed exercise by the employee of the right under the Paternity Leave and Benefit Act 2016 to paternity leave or transferred paternity leave within the meaning of that Act.
  • The exercise or proposed exercise by the employee of the right under the Parent’s Leave and Benefit Act 2019 to parent’s leave or transferred parent’s leave within the meaning of that Act. 

What is Summary Dismissal ?

This can be likened to dismissal for gross misconduct and the employer may not give the employee the required notice period. 

What is Gross Misconduct ?

What is and isn’t gross misconduct is often a confused issue, and it is not defined by legislation.

In DHY Express V M.C. UDD 1738 the Labour Court followed the decision in L. V B. M160/1978 and it was described as:

‘’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’.

Should a Suspension be Paid leave ?

Yes.

If an employer lays a charge of gross misconduct to an employee, they should suspend the employee – on full pay only – pending an investigation.

It does not look well for the employer if they suspend the employee without pay prior to an investigation to establish the truth and affording the employee with an opportunity to defend him/herself.

How do Adjudicators make their Decision ?.

The following are guidelines as to how Adjudicators (decision-makers) come to their decision in cases regarding unfair dismissal:

  1. Was the dismissal fair ?. What were the grounds that justified disciplinary proceedings against the employee ?. Were the reasons substantial ?.
  2. Were the procedures carried out fairly by the employer ?. Did the employee get a fair hearing and was he/she afforded with their constitutional right to natural justice. 
  3. Was the sanction ie dismissal reasonable as a response to the conduct of the employee ?.

The following quote is of assistance to understand this further.

 It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

Must Investigations be Fair ?

Investigations should be carried out in according with the principle of fairness. They should endeavour to establish the truth of the matter and deal with all of the facts.

Employers should deal with this procedural stage professionally and with serious intent to ensure principles of natural justice are provided to the employee.

Many employees are left aggrieved when they are presented with an investigation and the factual content of the investigation, does not include facts which could assist the employee defending themselves. They have a feeling the investigation is intentionally skewed to omit facts which could assist them answer the grievance laid before them.

Three Hats but the Same Person

What do we mean by this ?.

It is prudent and important, in our view, for employers to employ a sort of separation of powers when it comes to who runs a workplace Investigation, then the Disciplinary procedure, then the Appeals Procedure.

We have seen in many cases that it is one person that wants the employee out, and the same person appears within the facts at each stage of the workplace procedures. They want full participation to ensure the job is done in their mind.

This same person then controls the Investigation, the Disciplinary process, the Appeals process and may even have had the pre-procedures meeting with the employee inferring that a possible end to the employment may be coming.

This is imprudent, in our view, and such a person should step back if they have an issue with the employee and let fair process take place and accept the outcome.

CCTV & Investigations

If an employer is due to carry out an investigation into employee conduct and is relying upon CCTV as evidence of alleged misconduct, they should in the interests of fairness and natural justice afford the employee with a right to see and review the CCTV – before – being asked to respond to any allegations. Employees should ask for a copy of the CCTV to view prior to an investigation meeting.

Fair Process

Employees are entitled to fair procedures or in simple terms a fair hearing when it comes to an investigation and disciplinary meeting.

What can often happen is an employer is aggrieved at a conduct issue of an employee, decides very quickly this employee has to go, and proceeds to instruct the company HR person, for example, to carry out the investigation and disciplinary processes with speed, and the procedure stages are then hastily and improperly undertaken.  

If this happens, it does not look well for the employer, as it clearly indicates that due consideration was not given by the employer, and it indicates they made a decision at the outset to dismiss the employee and just wanted to follow the procedures to tick the boxes before the ultimate dismissal arose.

Duty of Employer to set out Allegations to Employee at the outset

Employers should set out clearly, and in detail, all allegations they have against the employee at the outset of an issue between the parties.

Employees have a right to defend themselves against allegations.

It is unfair and imprudent for an employer to add in a further allegation(s) mid process, and not provide the employee with time and the opportunity to respond to any additional allegations.

Essential Elements of Investigation-Disciplinary Procedure

In case ADJ-00020080 it was stated that there were essential elements for any procedure that dealt with disciplinary issues, and that they must be fair and rational. The basis for disciplinary action must be clear. The range of penalties must be well defined. Also, there must be an Appeal option.

The Adjudicator noted the general principles of natural justice and fair procedures include:

  1. That any allegations or complaints are put to the employee concerned.
  2. The employee concerned is given the opportunity to respond to any such allegations or complaints.
  3. The employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by or on behalf of the employee and any other relevant or appropriate evidence, factors or circumstances.

Absenteeism & Unfair Dismissal

If an employer dismisses an employee for absenteeism, it must be able show that their decision to dismiss was within the ‘’band of reasonableness’’, that fair procedures were followed, and that the decision to dismiss was proportionate to the conduct complained of.

What level of absenteeism justifies a dismissal can be an often fraught issue.

We have guidance, however, from the case of Dzierzawska v. Wincanton IrelandUD/7/2012, where it was observed:

An employer cannot reasonably be expected to employ someone with an unacceptable level of absences, notwithstanding that the reasons for the absence are genuine.

In D.S.L. v O. UDD1714 the Labour Court concluded that in circumstances where there was no prospect of the employee returning to work from absence on sick leave, the employer was entitled to dismiss on the grounds that the employee was incapable of performing their duties.

Did the Employer act Reasonably ?

Reasonable Employer Test

An employer must be able to show in an unfair dismissal case that they acted reasonably.

In L. V L. UD83/1984 the Tribunal described its role as ‘’to consider, against the facts, what a reasonable employer would have done’’.

Also, in B. V U.D.T. 1982 ILRM 404 it was stated ‘’the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved’’.

In A.I.B. v P. 2012 23ELR 189 it was stated:

‘’The correct test is: was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably another view’’.

Is there a Test for Reasonableness

Yes.

The following case set out very clearly and helpfully the test regarding whether the employer acted reasonably or not.

It was stated in N.(Irl) Ltd. V Kenna UD88/1983 that the test for reasonableness is:

1) Did the company believe that the employee misconducted himself as alleged ?.

2) if so, did the company have reasonable grounds to sustain that belief ?.

3) if so, was the penalty of dismissal proportionate to the alleged misconduct ?.

An adjudication officer will assess whether the employer’s decision to dismiss was within a range of reasonable responses of a reasonable employer for the conduct concerned.

It is not for the adjudicator to put themselves into the hypothetical position of the employer when assessing this.

What must the Employer prove ?

This was outlined in JVC E.L. V P. 2011, IEHC 279 wherein it was stated:

‘’In all cases of dismissal whether by reason of Redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character”.

In the U.K. case of British Leyland ltd V Swift 1981 it was stated that the test was:

“If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.”

The court in this case went on to describe that the test is – does the decision of dismiss the employee fall within the ‘‘band of reasonableness’’.

An employer does not have to prove that no reasonable employer would have taken the decision to dismiss the employee. The question instead is would a reasonable employer in the circumstances have taken the decision to dismissed the employee based on the facts.

Proportionality of Decision to Dismiss

The decision to dismiss an employee must be proportionate to the gravity of the complaint.

In F. V N.R.C.U. 1997 IEHC 137 it was stated ‘’the decision must also be proportionate to the gravity and effect of dismissal on the employee’’.

Employees Record & Dismissal

It is important for employers who are making a decision to dismiss an employee that they also consider the employees service record.

If they do not, this may go against them in a case.

Dismissed for Incapacity – What are the Requirements ?

Certain requirements should be met before an employee is dismissed by reason of incapacity.

For guidance and this, we can refer to Bolger V Showerings Ireland ELR184 which listed key requirements which should be met before a decision to dismiss an employee for this reason is made:

1. Ill health must be the reason for the dismissal;

 2. This must be a substantial reason;

3. The employee must be notified that dismissal for incapacity is being considered; and

 4. The employee must be given a chance to be heard.

Redundancy & Dismissal

Many employees are faced with the problem of being made redundant, when an unfair dismissal situation is the reality.

A key and fundamental feature of redundancy is that is the Position thats made redundant. A personality clash with the employer does not qualify as a genuine reason for redundancy.

Sham redundancies are quite common, and employees should invoke the law in terms of unfair dismissal if this arises.

Health & Safety Breach

Can an employer end an employees employment for a health and safety breach alone ?.

Yes, is the answer.

The employer can argue the trust and confidence in the relationship has irretrievably broken down.

The same fair procedures, principles of natural justice, proportionality of sanction ie dismissal must also be followed by an employer in such a circumstance. An employee’s record should be reviewed by an employer if considering dismissing an employee for one health and safety breach, however serious the employer deems the matter to be.

What is Mitigation of Loss ?

Former employees not mitigating loss comes up again and again in unfair dismissal cases.

S. 6 of the Unfair Dismissal Act 1993 states:

If the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.

This means in terms of mitigation of loss that an Adjudication officer can reduce a successful employees award at the Workplace Relations Commission, if the former employee did not mitigate their loss. This happens often.

Mitigating loss means mitigating financial loss, which obligates a person taking an unfair dismissal case to take proactive and consistent steps to secure further employment to mitigate their financial loss.

It is a gift to an employer unsuccessful in defending an unfair dismissal case, if the person does not do this.

Frequently Asked Questions

What constitutes gross misconduct Ireland ?

We answer this in this post.

What are examples of gross misconduct ?

See this post for guidance.

Do you always get sacked for gross misconduct ?

This is dependant on the individual employer. If the employer is aggrieved at conduct of the the employee, the employee still has a right to a fair investigation of the matter to put in his / her defence with any relevant witnesses etc.

Do I have to attend a disciplinary hearing for gross misconduct ?

You should attend such a meeting. The sanction applied by the employer to the conduct complained of has to be proportionate, and the employee should be afforded a right of appeal.

Does a disciplinary mean dismissal ?

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.

Can you appeal a decision for gross misconduct ?

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.

How to you prove gross misconduct ?

If there is cctv or witnesses as to the fact, witness statements may be sought and availed of. What is the evidence of each party relevant to the facts will likely be assessed.

What do you get for unfair dismissal ?

This is answered above.

What is the Unfair Dismissals Act

The primary Act is the 1977 Act, but it has been amended many times thereafter.

Here is the revised edition to November 2019.

How much compensation do you get for unfair dismissal in Ireland ?

This is answered above. The max is up to 104 weeks ie salary remuneration if successful.

How to you prove unfair dismissal ?

The burden of proof in unfair dismissal cases is on the employer to disprove it, if it has been established the person is an employee, was dismissed, and has the requisite service period completed.

Can an employer dismiss you without warning ?

There is strong employment law legal protection in Ireland, and it would be imprudent and contrary to fair procedures should this arise.

What can you do if you were fired unfairly ?

You may have a right to legal recourse in terms of activating a legal action under the Unfair Dismissals Acts, or other legislation.

Disclaimer

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.

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.

In contentious business, a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.