Recent Developments when Dismissing Employees for Gross Misconduct

The reports have brought into focus the vexed question of when it is appropriate to dismiss employees for what is variously termed ‘gross’ or ‘serious’ misconduct. It is settled that to justify dismissal on the basis of gross misconduct, the behaviour of the employee must be such that no reasonable employer could be expected to tolerate the continuance of the relationship any longer. That test is somewhat easier stated than it is applied and recent cases have reaffirmed the high threshold that must be reached by employers seeking to argue that an employee was fairly dismissed on the basis of gross misconduct.

Dishonesty

Obvious instances of conduct warranting summary dismissal include acts of theft and dishonesty (both inside and outside the workplace) which clearly rupture trust and confidence between the parties. However, recent authority from the Workplace Relations Commission (“WRC”) has reminded employers that, even in what may seem like clear cases of gross misconduct, it is crucial to afford the employee with fair procedures prior to the dismissal. Earlier this year in A Banker v A Bank, a trader was dismissed for having applied above market interest rates to his parents’ deposit account despite his protests that such a practice had been a transparent and acknowledged practice in the bank. The WRC, taking into account a number of deficiencies in the procedure adopted by the employer, found that there was no reasonable basis to conclude that the complainant had been dishonest or guilty of theft. In that case, the employee was reinstated despite the protestations of the employer that this would lead to workplace disharmony given that trust and confidence between the parties had been breached.

In Tim Marks v ICTS Ireland Limited, the dismissal of an airport security officer for theft of a magazine from a rubbish bag was held to be disproportionate in the circumstances. Despite the employer’s zero tolerance approach to theft, and the employee’s acceptance that his conduct had been wrong, the WRC held that dismissal had not been the only appropriate sanction in the circumstances. Again, in this case, the procedure adopted by the employer had been fundamentally flawed and the sanction was considered to be disproportionate in light of the value and significance of the property item in question and the length of service and unblemished record of the employee.

Other examples

Besides the more obvious examples of theft and dishonesty, other conduct which may warrant dismissal on the basis of gross misconduct includes refusal to obey lawful and reasonable orders of the employer. The case of A General Operative v A Beef Processor in recent months found that the dismissal of an employee for acts of insubordination was reasonable where the employee had left his work station without permission and the employer had afforded the employee fair procedures in its investigative and disciplinary procedures.

Acts of harassment and bullying may also justify summary dismissal, as may serious breaches of the employee’s duty of confidentiality. Earlier this year in Danceglen Limited v Ribeiro, the employee had been dismissed on grounds of gross misconduct for breaches of the employer’s internet policy, having been found with a USB key with company information on it and having sent company emails to his personal email account. The decision of the employer to dismiss the employee, following an investigation and disciplinary process, was found to be within the range of responses of a reasonable employer, given especially that the employer had a comprehensive policy dealing with the matter. Although this case disclosed a clear breach of loyalty and fidelity, several similar cases have proven not to be defensible because the employer failed to have a policy dealing with internet and email usage.

Moonlighting

Another instance of gross misconduct which has come before the WRC in recent months relates to moonlighting (engaging in a second, secret employment). In A Transport Worker v A Transport Company, a tram driver was dismissed for having secretly worked as a taxi driver at night, contrary to the exclusivity clause in his contract of employment which stated that moonlighting constituted “gross misconduct”. This dismissal was found to be sustainable on the basis that the nature of the role was safety critical, requiring a high level of application and concentration. The regulatory obligation on the employer to monitor and prevent driver fatigue, primarily by enforcing rest periods, was clearly influential in this decision, given the potential for unknown external work to pose a risk to passenger safety. However, the extent to which moonlighting might, in a different case be considered to constitute gross misconduct, may depend on whether the employment contract stated that acts of moonlighting would constitute gross misconduct and whether the role could be said to be a safety critical one. 

Concluding remarks

Gross misconduct has been described as being at the zenith of possible disciplinary charges. As such a finding allows an employer to dismiss an employee without notice, employment tribunals have consistently insisted that additional safeguards and procedures are adopted prior to the termination of employment. Although the assessment of what constitutes gross misconduct is made by the employer, the WRC will scrutinise the proportionality and reasonableness of both that determination and the fairness of the procedures leading up to it in deciding whether the dismissal was within a range of reasonable responses by the employer.

Accordingly, employers wishing to dismiss employees on the basis of gross misconduct must have a genuine belief based on a fair investigation that the employee was guilty of the alleged wrongdoing and afforded with fair procedures in the course of the disciplinary procedure arising therefrom. The Employment, Pensions and Incentives Group at McCann FitzGerald has significant experience of providing strategic advice to Ireland’s major employers on the termination of employment. Your usual contact in McCann FitzGerald would be happy to provide for further information.