Breach of Trust and Confidence by Employee

Introduction

Irish employment case law recognises the value of trust and confidence being present by both parties in an employment relationship. Ordinarily, when the trust and confidence between an employer and employee has been irrevocably broken, the relationship is unsalvageable and may lead to a dismissal or resignation, as applicable. 

Breach of Trust and Confidence by Employee - Case Law

In the case of A Worker -v- A Meat Processing Plant (ADJ-00016025), the employee brought a complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977. In summary, the employee was dismissed after 22 years of faultless service. However, it was discovered by her employer that, for the 18 months prior to being detected, the employee had been “clocking in” at 6 a.m. each morning on behalf of her brother, also an employee, who would not present himself at work until 30 minutes later.

An investigation and disciplinary process commenced on the detection of this practice. The employee was found guilty of gross misconduct and her employment was terminated. An appeal was submitted but ultimately rejected.

It had been suggested by the employee that the practice was not as serious as the employer was making it out to be. However, the employer rejected this argument, noting that to suggest the offence was not a serious one, was incorrect. The employer held that the practice was akin to theft and, the only reason why the employer did not describe it as such during the investigation and disciplinary process, was as an act of courtesy to the employee whose long term service had been highly valued until this point. The employer concluded that under the case law (Martin v Audio Video Centre Ltd UD 617/1991; Looney and Co. Ltd UD 843/1984 and Thompson v Power Supermarkets Ltd. UD531/1998) the Adjudicator in determining whether a dismissal is fair or otherwise, should not replace the Respondent’s decision with a decision that she might decide but rather she must have regard to whether the decision fell into a band of reasonable responses to misconduct. It is not relevant that the Complainant did not benefit from the misconduct personally and the monetary value of the fraud is also not relevant. Rather, the relevant consideration is whether trust and confidence had broken down as a result of the misconduct admitted by the Complainant and, if proven, a long unblemished service does not mend that.

The Adjudication Officer noted that this was a very regrettable occurrence given the, hereto, strong bond of trust and confidence between both employer and employee, in each other.

It was acknowledged that the employee had worked with her employer for the majority of her working life. She had never faced any performance or disciplinary issues. She had been promoted within the workplace and was relied upon by the employer to a significant extent. However, the Adjudication Officer noted that her role was to look at the offence in question and decide whether it reasonably came within the definition of misconduct, whether the investigation and disciplinary procedures adopted were fair and whether the response of the employer in dismissing the employee came within a band of reasonable responses to the supposed misconduct.

The Adjudication Officer found that the decision to dismiss the employee for gross misconduct was fair and reasonable under the circumstances. The Adjudication Officer noted that:

"The clocking in process relies on the honesty of employees. They are paid on the basis of a clocked in start time and a clocked-out finish time. To meddle with this without sanction of the Respondent when the effect of doing so is to defraud the Respondent is a serious offence. It is dishonest and therefore goes to the heart of the bond of trust between employee and employer."

Breach of Trust and Confidence by Employee - Dismissal

In essence, when there is an absolute break down in trust and confidence between employer and employee, it is most likely that the employment relationship will be terminated by either party. If the employer terminates the employment of the employee, the employee may be entitled to bring a claim of unfair dismissal. If the employee resigns citing the unreasonable behaviour of the employer or breach of contract, which goes to the heart of the employment relationship, the employee may be in a position to bring a claim of unfair dismissal by way of constructive dismissal. 

For further information please contact Crushell & Co. Solicitors.