07 Oct Gross Misconduct

The required standard of misconduct or breaches of workplace rules to constitute gross misconduct, is well established to be high, and in order to avail of the exemption under Section 8 of the Minimum Notice & Terms of Employment Act 1973 not to pay notice, it only applies 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.” Lennon v Bredin M160/1978.

A recent appeal in the Labour Court examined this standard when the Respondent Company appealed the decision of an Adjudication Officer who had determined that the Complainant had been unfairly dismissed, after he was dismissed summarily without notice for gross misconduct, for careless driving. (Ref UDD2229)

The Complainant was a HGV Driver who was employed for 3.5 years and was dismissed on foot of two incidents that occurred on consecutive days. The first was when he swerved to avoid an oncoming vehicle and in doing so struck and damaged a BMW that was parked on the side of the road, with the driver in the vehicle at the time. The following day, the Complainant had a near miss when exiting a roundabout, when a driver in the right-hand lane, left his lane incorrectly to exit in the left lane, causing the complainant to brake hard to avoid hitting him. The Complainant reported what had happened to management, as he had done the previous day.

The Complainant was suspended on full pay pending an investigation, which found that he had driven in an unsafe manner, and that a disciplinary hearing should take place.

The Complainant who is Polish had a colleague present to assist with interpretation as his English was better.

The Complainant was not accompanied at the meeting but had been offered the opportunity to be and presented a letter from his solicitor detailing 12 different concerns he had about the disciplinary process.

The Complainant asked that his Solicitor attend the meeting, but this was not permitted as per Company Policy and the meeting proceeded.

The Complainant denied that he had done anything wrong, but the decision was taken to dismiss him.

The Complainant appealed the decision outlining nine different grounds of appeal, including:

Being denied legal representation when his command of English was poor;

Non admission of CCTV footage which would have exonerated him;

No opportunity to cross examine witnesses; and

Insufficient evidence to justify decision.

The Complainant again requested that his Solicitor be present at the appeal meeting but this was refused. An independent translator was provided as requested.

The appeal was unsuccessful and it was found that there had been a fundamental breakdown of trust and confidence, due to a breach of health and safety rules.

The Respondent outlined that the Complainant was shown CCTV footage and had no acceptable explanation for his unsafe driving on two consecutive days, and said there was no alternative sanction available as they could not risk a third incident occurring, and the impact it would have on their Insurance.

The Court found that the Respondent should have given some consideration to a sanction that was short of dismissal in the circumstances and that there were deficiencies in their procedures, including not providing adequate interpretation facilities early on in the process, not providing contact details for the driver of the BMW when requested by the Complainant, who had told him on the day he had done nothing wrong, as well as not acknowledging that the it was the third party driver on the second day who had contributed significantly to the near miss. The Court also noted that some of the CCTV footage was not shown to the Complainant from the front of the vehicle, with the Respondent acknowledging it was faulty.

The Court found the process was unfair and should not have constituted a gross misconduct dismissal.

The Complainant was awarded €9,600.00 in respect of his loss of earnings up until he commenced new employment.

Of note as well is that the Court did not agree that the Complainant’s poor English was sufficient grounds for him to have his Solicitor present and it remains the case that legal representation will only be permitted at internal meetings as an exception.