Gross Misconduct – Dismissal not warranted

In the case of Bobby Amadasun v Shannon Transport & Warehouse Company UD 369/2010 sent last Thursday, the Employment Appeals Tribunal was faced with the question of whether the Claimants behaviour amounted to gross misconduct.BackgroundThe Respondents were involved in various aspects of logistics and distribution in the Munster region and beyond. The Claimant was employed as a driver of a rigid truck involved in the distribution of products for clients of the Respondent from May 2006.On 15th January 2008 the Claimant was issued with a final written warning over four incidents which had occurred in the previous twelve months. The warning had nine months duration in accordance with the Respondent’s disciplinary policy. On 8th September 2008 the Claimant was again issued with a further final written warning following a no-show at work after an overseas holidays. The Respondent gave the Claimant the benefit of the doubt and he was not dismissed but his final written warning was extended by nine months.On 3rd July 2009 the Claimant was observed urinating against the wall of a customer who subsequently refused to accept a delivery. On 6th July 2009 the Company received a call from their client informing them of the incident and on 7th July 2009 the Respondent spoke to the Claimant in respect of the incident who agreed that it had occurred. The Respondent subsequently met with the Claimant and a memorandum was prepared of the meeting on 14th July 2009 whereby the Respondent stated that they disapproved of his behavior and although not reflected in writing, the Respondent stated that they warned the Respondent that his behaviour could lead to dismissal.On 17th July 2009 the Claimants truck was involved in a low-speed collision with a car leaving a car park. The Claimant and his brother, who was in the vehicle with him, became involved in discussions with the car owner and Gardai were called and took statements. Subsequently the driver of the car wrote to the Respondent seeking reimbursement for damage and stated that the Claimant had been bullying and threatening in his behaviour. The driver of the car also stated that she had CCTV footage of the incident in question which occurred on 27th July 2009.The Claimant was invited to a disciplinary hearing on 31st July 2009 to discuss three issues:

1. Complaints received from customers, colleagues and members of the public regarding the Claimants behaviour and attitude at work.
2. Incident which occurred on 17th July 2009 in respect of the collision with another vehicle.
3. The carrying of a passenger in the respondent’s vehicle without permission

The Claimant chose to attend the meeting on his own. During the meeting HR felt the Claimant was aggressive and informed him that the incidents could potentially be deemed to be gross misconduct and that he was suspended with pay pending further investigation.On 7th August 2009 HR met the claimant and advised him of the decision and gave him a copy of the CCTV footage which was received on 1st August 2009. The Claimant was subsequently dismissed with two weeks pay in lieu of notice.The Claimant was informed of his right of appeal which was heard by the Financial Controller and the appeal to dismiss was upheld.Determination

1. The grounds on which the Respondent justified the dismissal could not be characterised as gross misconduct.
2. In the ultimate analysis, the encounter of 17th July 2009 involved a matter of civil and insurance liability
3. it is the view of the Tribunal that dismissal was not warranted and not sanctioned by the Unfair Dismissal legislation

In arriving at their decision, the Tribunal noted that the Claimants events in relation to events described was an issue and they were not satisfied that the Claimant gave a candid account of events that occurred. The Tribunal also noted that the Claimants evidence was evasive and contradictory. The Claimant also did not maximise efforts to mitigate losses and was awarded €2,840 under the Unfair Dismissal Acts 1977 to 2007.It is unclear from the decision whether “gross misconduct” was defined in the Respondent’s disciplinary policy and the reasons why the Tribunal concluded that the dismissal was not warranted on these grounds. On a practical note, employers should try to define all instances of what constitutes “gross misconduct” in all employment related documentation including policies and procedures whilst also providing that the list is not exhaustive. Most importantly employees should be made fully aware of all policies and procedures and proper training provided to them in relation to same.