In this case, the claimant warehouse operative was dismissed for breaching a health and safety rule. He was found to be using his mobile phone while operating a mechanical handling equipment vehicle in the warehouse. The claimant had been fully trained in safe handling of such vehicles and was aware that use of mobile phones was prohibited while operating a vehicle.

The respondent had briefed staff on the use of mobile phones while operating a vehicle in the weeks leading up to the incident in question. In light of previous incidents, a policy change had occurred and a decision was made that instant dismissal was a potential consequence of breach of the policy. This was clearly communicated to employees in the weeks leading up to the claimant’s case. The respondent dismissed the employee for serious misconduct.

The claimant accepted that he should not have used the mobile phone but his main case related to the proportionality of the decision to dismiss him. The EAT agreed with this position, particularly as the policy did not preclude lesser sanctions from being imposed. The EAT awarded the claimant €20,000.

The respondent appealed this decision to the Circuit Court where the EAT’s decision was overturned. It was reported that Judge Jacqueline Linnane agreed with the strict safety regime imposed, particularly because failure to apply the code in such a large warehouse could prove fatal.

This case highlights the importance of proportionality and fair procedures in making a decision to dismiss an employee, particularly where the employee admits wrongdoing. It is very clear that where fair procedures have not been applied in dismissing an employee, then the dismissal itself will likely be considered unfair.

The communication of any policies to employees, including a clear outline of how breach of these policies will be dealt with, is also of vital importance. Even in circumstances where a policy has been clearly communicated, any decision made must be proportionate. This can sometimes be a difficult line to draw, as can be seen by the conflicting decisions of the EAT and the Circuit Court in the Burczy case. However, this case shows that where broader consequences could result from breach of a policy, in this case ‘fatal’ health and safety consequences, dismissal may be more readily considered proportionate and justified. In any event, fair procedures must always be followed in dealing with the employee.