In a recent decision of the Labour Court, an employee was awarded the equivalent of 104 weeks’ remuneration which is the maximum financial compensation awardable under the Unfair Dismissals Act, and is a level of compensation not often experienced before the WRC or the Labour Court.

In it’s decision, the Labour Court considered the nature of gross misconduct, the proportionality of the sanction and the failure to consider alternative sanctions.

The case arose from an appeal by the employer against the decision of a WRC Adjudication Officer under the Unfair Dismissals Acts 1977-2015. The Labour Court appeal was heard on the 13th July 2017. The employer, DHL Express (Ireland) Limited, was represented by Irish Business and Employers’ Confederation and the employee, Michael Coughlan, was represented by SIPTU.

In the WRC, the Adjudicator had awarded re-instatement with effect from 28th September 2016 – the date of the WRC hearing.  Therefore, while an award of 104 weeks remuneration is significant and perhaps even exceptional, ultimately the value of that award may be less than the WRC remedy of re-instatement, particularly where the employee had given evidence of his failure to secure alternative employment since his dismissal by DHL.

The employee was a courier/van driver with over 11 years’ service until he was summarily dismissed on 24th November 2015 following a driving incident where a collision had resulted in damage of €2,500 to his van. He admitted throughout the internal processes that he had misjudged the space available as he was driving into the depot compound. Having promptly brought the incident and van damage to his manager’s attention, the employee was permitted to drive for a further two weeks before being suspended. This proved to be significant in the assessment of the grounds for dismissal; gross misconduct.

Fair Procedures

This decision reinforces the obligation on the employer to be consistent and clear in setting out the allegations that the employee is required to answer, which is, after all, a cornerstone for fair procedures. It was observed that the invitation letter to the disciplinary meeting did not cover all of the issues considered at the disciplinary meeting or the issues subsequently referenced in the letter of dismissal. This expansion of the grounds and the rationale for dismissal continued into an internal appeal as the employer’s stance expanded from a charge that the employee had “failed to protect and safeguard company property” to the company’s “need to recognise the duty of care we have to the public, other staff and to yourself”.

Gross Misconduct

The Labour Court considered the nature of dismissals for gross misconduct and restated the conservative understanding of gross misconduct in an employment context in this jurisdiction, referencing the Determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 at Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC 1996)) wherein the Tribunal stated:

“Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability from minimum notice where the dismissal is for misconduct.  We have always held that this exemption 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 that the legislator had in mind such things as violent assault or larceny or behaviour in the same sort of serious category.  If the legislator 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 it 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 Labour Court held that the grounds advised to the employee as forming the basis of a disciplinary action against him – “the failure to protect and safeguard company property” and the employee’s admitted actions of failing to properly judge the width of a gap he was attempting to drive through - did not come within the category 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” and it was noted that the employee continued driving the company vehicle for some two weeks after the incident before being suspended.  The Labour Court felt the facts of the case could not reasonably be considered to amount to gross misconduct and therefore could not justify summary dismissal.

Admissibility of Previous History

The employee was afforded both an initial investigation, a disciplinary hearing and an appeal and throughout the employer relied upon previous driving incidents where the employee had received a written warning for an incident in 2012 and a final written warning for an incident in 2013.  Both written warnings were active for a period of 12 months from their date of application so accordingly, the final written warning had expired some 12 months previous to this 2015 incident which was being characterised as gross misconduct, not least due to these previous warnings which the employer considered demonstrated his driving infringements were ongoing, deeming that repetition to constitute “gross misconduct”.  The Labour Court clearly disapproved of the Company’s approach to these past incidents and how the history of prior warnings was allowed to influence the decision at hand. This is of particular significance as under the employer’s own policies the previous sanctions had lapsed and should have been treated as expunged. This analysis reminds employers to ensure they comply with their own policies and fair procedures.

Alternative Sanctions and Proportionality

As ultimately the Labour Court did not agree that the charge could ever have amounted to gross misconduct, it couldn’t endorse a sanction of summary dismissal but it is also noted that the employer was found not to have considered alternative sanctions, even to the extent the employer did not appreciate that a sanction of dismissal on notice was available to them. Following the 2013 incident, the employee was offered three options; - redundancy, re-deployment or re-training and he had chosen re-training at that time. It is important to stress the obligation on the employer to demonstrate that alternative and/or lesser sanctions have been considered and that their sanctions are consistent, as following the 2015 incident the company admitted it had not assessed or contrasted incidents by other drivers and the sanctions imposed there. In totality though, it does not seem that even dismissal with notice would have been proportionate for a driving incident involving material damage only, occurring some time after historic and now spent incidents, and where it was being accepted that the collision was caused by an error in judgement, without elements of serious negligence or recklessness.

http://www.workplacerelations.ie/en/Cases/2017/July/UDD1738.html