04 Oct Gross Misconduct Dismissal
The threshold of gross misconduct is a difficult one to meet for workplace dismissals and this recent case highlights that despite the long serving and clean employment record of the employee concerned, proper investigation and due process can ensure that inappropriate behaviour in the workplace can be dealt with correctly (ADJ 00026053).
The Complainant, a long serving Stores Manager/Supervisor since 1997 in a knitwear manufacturer had a good working relationship and a clean employment record up until 2018, prior to his dismissal for gross misconduct on 16th September 2019, due to insubordination and disruptive and disrespectful behaviour.
On the 16th August 2019, the Complainant had been asked by the MD to re-pack an order which had been put in the incorrect boxes, and to await the arrival of the correct boxes. The Complainant had taken a decision to expedite an order and not wait for the boxes, and questioned the MD by email on the matter.
The Complainant then attended a Supervisors meeting the following day, which he had initially declined to attend, and proceeded to behave in a disrespectful and aggressive manner towards management which had a negative impact on the meeting and staff. A private meeting with the Complainant and Company Director (CD) to ascertain what was wrong resulted in shouting and further aggression, and the Complainant stepping into the CD’s personal space.
The Complainant subsequently refused to attend another Supervisor’s meeting in the staff canteen on another day, and also handed back his keys and refused to open the shutters of the premises, a job he had done for the previous 10 years.
The CD then approached the Complainant to see why he was handing back his keys, who insisted that the conversation take place on the factory floor, and started shouting and saying he would not open the shutters due to the disgusting email he got from the MD the night before. The Complainant was asked to leave the premises due to his manner and refused and started screaming in front of everyone on the shop floor. The Complainant refused again to leave when asked and was told he would be given full pay for the day, but would not be paid if he stayed. The Complainant also demanded three times that the MD be called when he heard he was no on site that day.
The Complainant was suspended on full pay from Friday August 23rd 2019 to allow for an investigation into the behaviours displayed, by an independent external organisation, but still turned up for work on the following Monday despite the suspension letter being delivered in person and demanded on seeing a copy of the letter that it be provided by registered post.
The independent investigation subsequently found that the confrontational behaviour of the Complainant could only be regarded as unacceptable and contrary to normal workplace behaviour.
A disciplinary hearing was convened and the Complainant was dismissed by letter dated 16th September 2019 and following the submission of an appeal, the Complainant requested an informal meeting with the Directors and submitted a handwritten letter in which he acknowledged that his behaviour was unacceptable.
The appeal determined that the behaviour of the Complainant was too serious to enable a sanction less than dismissal and therefore the dismissal was upheld.
The Respondent detailed that a previous final written warning from March 2018 which had expired, was not taken into account in coming to their decision, but at the time the behaviour that occurred would have warranted dismissal.
The Complainant outlined that the disciplinary and investigation processes were pre-ordained in that the suspension was imposed by the MD, and the investigation commissioned by the MD, with the disciplinary hearing conducted by a Company Director (CD), who was involved in a previous complaint.
The Complainant said his concerns about the packing were raised for customer service purposes and whilst accepting that there was a heated discussion with the MD, he did not consider it to be disrespectful or aggressive and he believed the MD had contributed to the situation. The Complainant outlined that the Investigator had also been briefed by the MD and the CD, and that this gave rise to a perception of bias.
The Complainant further outlined that the response by the Company was disproportionate and unreasonable given his long and exemplary service with the Company.
The Adjudicator determined that on the balance of probabilities the behaviour of the Complainant had amounted to gross misconduct, and in this instance was insubordination, abusive, threatening and intimidatory and there were substantial grounds justifying the dismissal. The Adjudicator further found that the Respondent had conformed to the generally accepted standard of fairness and objectivity required in such cases in respect of its procedures and did not accept that the external investigation was substandard or had not followed the principles of natural justice.
As we know fair procedures and due process is critical in dealing with disciplinary matters is critical and in particular when dismissal is a potential outcome. In this case an external independent investigation report provided a strong basis on which the remainder of the disciplinary and appeal stages could proceed.