Gross Misconduct or Misconduct?
Most employers will make reference to Gross Misconduct in the Company Handbook and often the Contract of Employment. Most often policy and procedure will allow for the employer to Summarily Dismiss an employee for behaving in a manner that amounts to Gross Misconduct.
Gross Misconduct refers to misbehaviour so serious it breaks the element of trust, implicit in (and necessary to) the employment relationship, and so warrants Summary Dismissal, without the normal contractual obligations of notice or payment in lieu of notice.
Below is a list (not exhaustive) of behaviour that might be considered Gross Misconduct
- Breach of Health and Safety regulations
- Bullying, Harassment, Sexual harassment
- Sleeping at work
- Physical assault
- Consumption of drugs /alcohol
- Breach of confidentiality
- Inappropriate behaviour towards clients
- Misuse of company property
- Accepting/offering bribes
But it seems deciding what constitutes Gross Misconduct may not be as simple as what is contained in the Employee Handbook or the Contract of Employment.
In case ADJ 00026969, the employer, an IT company, relied on the terms of the Contract of Employment and Policies set out in the Employee Handbook, to summarily dismiss a Software Developer following conduct the employer believed constituted gross misconduct. The employer argued that the Disciplinary Policy allowed for “summary dismissal…with immediate effect, without notice and with no liability”. However not only did the AO consider that the employee’s behaviour did not amount to Gross Misconduct but also that the employers’ process was flawed and had failed to afford the employee fair procedures. Consequently, the employees claim for Unfair Dismissal was successful.
It is well acknowledged that when defending the fairness of a decision to dismiss, an employer must show that fair procedures were followed and be able to prove the decision was reasonable under the circumstances.
The same applies in a situation where an employer is conducting a disciplinary process for conduct that might be serious enough to be deemed Gross Misconduct; it is important that employers understand that Summary Dismissal is not instant dismissal; and the matter should be fully investigated, prior to taking action. Having completed the process, the employer must decide whether a decision to dismiss is justified.
In the UK case of Iceland Frozen Foods v Jones (1983), where an employee claimed he was unfairly dismissed, following a brief ten-minute meeting, the case established the principle that when examining the employers’ reasonableness, in making the decision, a Tribunal would not only consider the employers’ reasonable belief but also substantive and procedural issues, relative to the case.
As we have seen reading the case above; making the decision might be easier said than done; what is reasonable to an employer, might not be found reasonable when examined by the Workplace Relations Commission or the Labour Court. In DHL Express (Ireland) Ltd v. Michael Coughlan , the employee appealed a decision of the Workplace Relations Commission to the Labour Court; the Court found in favour of the employee and awarded 104 weeks’ salary as compensation for unfair dismissal for Gross Misconduct. These decisions suggest the interpretation of what misconduct is serious enough to warrant the sanction of Summary Dismissal, is not as broad or as easily identified as what might be found in the Employee Handbook or the Contract of Employment. These decisions should serve as a reminder to employers to consider the individual scenario and the particular set of circumstances.
In a situation where an employer is considering Summary Dismissal for Gross Misconduct the employer should ask the question; would a reasonable employer class the employee’s behaviour as Gross Misconduct and dismiss; or if a warning would be a more appropriate sanction.
Points to note:
Always apply Fair Procedures,
Always follow Company policy
Ask the ‘reasonableness’ question.
If in doubt, issue a high-level warning.
Every case is different and will be assessed as such