Dismissal for Gross Misconduct

Introduction

A recent case before the Workplace Relations Commission (WRC) (Paul Gary Dixon -v- DFS Normal Trading Limited ADJ-00030253) highlights a number of considerations to be kept in mind before an employee considers bringing a claim of unfair dismissal following their termination of employment for gross misconduct.

In summary, the complainant, Mr Dixon, was employed with the respondent, DFS Trading Limited, with effect from 13 March 2018. He initially commenced as a delivery driver but was subsequently working as an Acting Warehouse Supervisor, with effect from 02 July 2020. On 02 July 2020, at the company warehouse, an incident occurred between Mr Dixon and another employee. There was a verbal altercation between the parties with Mr Dixon allegedly rushing towards a colleague with clenched fists in a threatening manner. 

It was claimed, on the part of the respondent company, that Mr Dixon may have assaulted his colleague were it not for the intervention of a manager who happened to have witnessed the incident.

Mr Dixon was later dismissed for gross misconduct but brought a claim before the WRC arguing that his dismissal was procedurally and substantially unfair.

Procedural elements to a Disciplinary Process

The company asserted that fair procedures were applied to the process leading to the dismissal of Mr Dixon.

Mr Dixon relied on the decision in Morgan v. Trinity College Dublin [2003] 3 I.R. 157, where it was held that a person suspended as a penalty or sanction was entitled to be afforded natural justice and fair procedure before a decision to suspend was taken. Mr Dixon argued that he did not believe he was afforded natural justice and fair procedures as he was the only staff member who was suspended after the incident took place and before a proper understanding of the fact could be established.

The company argued that:

• At all times during the investigation disciplinary process, Mr Dixon was given prior notice of investigation and disciplinary meetings.

• That Mr Dixon was made aware of the allegations against him at the outset of the process.

• That, at all times during the investigation and disciplinary process, Mr Dixon was given the opportunity to answer the allegations made.

• That at all times during the process, Mr Dixon was provided with the right and was accompanied in the disciplinary meetings by colleagues.

• That Mr Dixon was given the right of appeal against the sanction of dismissal.

• That the investigation was completed in a fair manner.

• That Mr Dixon was aware of the company’s disciplinary and dismissal procedures and that that policy was followed by the company throughout the investigation and the disciplinary process.

Gross Misconduct and Unfair Dismissal

The WRC acknowledged that Mr Dixon was dismissed for gross misconduct following an altercation with a colleague. In summary, the WRC noted that he was denied fair procedure and natural justice and that, in any event, the sanction was excessive and disproportionate to what had occurred.

The WRC pointed to the relevant legislation, namely:

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Gross Misconduct and Procedural Issues

Mr Dixon outlined a number of procedural issues which he contended rendered the process unfair. The WRC pointed to a significant amount of case law with respect to procedural expectations in the context of investigation and disciplinary processes in the workplace.

The Supreme Court in Glover v BLN Limited(1973) IR 388 decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. It is quite clear from the case law of the superior courts, that there is no fixed standard of natural justice which lays down how certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances. Furthermore, Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect, but it should come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances. This was also detailed in Mooney v An Post ([1994] E.L.R. 103), where what exactly is required of an employer to satisfy the requirements of natural justice may differ from case to case.  In that case, Keane J. stated that the two principles of natural justice, namely “audi alterem partem and nemo iudex in causa sua cannot be applied in a uniform fashion to every set of facts”. Therefore, while employers are required to afford natural justice and fair procedures to employees when carrying out disciplinary procedures, regard must be had for the particular circumstances of the case to ascertain what the requirements of natural justice and fair procedures demand in the particular circumstances. If the process followed by the employer, while not entirely faultless, is within the scope of what could be considered a reasonable response in the particular circumstances, then the employer's actions will be deemed to be acceptable.

Suspension and Gross Misconduct

The WRC noted that the suspension occurred after an initial investigation had taken place and, in light of the fact, recognised that the respondent company had concerns that a comparable incident may arise again.

In Bank of Ireland v Reilly [20145] IEHC 241, Noonan J found that -

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he was then) in Morgan v Trinity College Dublin [2003] 3 IR 157 there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.”

Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters.”

In light of the above, the WRC concluded that the company was reasonable in suspending Mr Dixon pending a final outcome.

Termination of Employment and 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. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal 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.”

The WRC, in light of all of the circumstances of the complaint, the altercation that occurred and previous history, noted that Mr Dixon’s behaviour was “of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer”. Ultimately, the WRC agreed with the respondent company that the actions of Mr Dixon fell within the definition of gross misconduct.

Gross Misconduct and Band of Reasonableness

In relation to the Complainant’s summary dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

 “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.”

Having considered the matter, the WRC found that the decision to dismiss Mr Dixon was within the range of reasonable responses of a reasonable employer. The WRC noted that the respondent company had sought witness statements and established through its investigation process what had actually occurred and determined that the actions of Mr Dixon amounted to gross misconduct. 

The WRC concluded noting Looney & Co. Limited -v- Looney (UD843/1984) that any employer faced with similar circumstances to those that pertain to this case, would have acted in the same way.

Conclusion

In conclusion and having considered all of the submissions of both parties and the evidence provided at the hearing of the complaint before the WRC, the WRC declared that the dismissal of Mr Dixon was both procedurally and substantially fair.

The WRC therefore decided that the complaint of Mr Dixon was not well founded.