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Gross Misconduct? – “Mixed Signals” costs employer €10,000

The case of Andrew Dohohoe v PH Ross Limited UD 2164/2010 reported last Thursday, highlight the dangers of “mixed messages” being sent to an employee when possible dismissal is imminent.BackgroundThe Claimant was branch manager of the Respondent whose business included selling heating and plumbing goods to trade. The Claimant had an unblemished disciplinary record until his dismissal in August 2010.The company gave evidence that its turnover halved between 2008 and 2012. The Finance Manager gave evidence that he was responsible for credit control rules and cash flow. He also gave evidence in relation to a “customer B” and that no further goods were to move on his account as there were sums outstanding. The Claimant subsequently informed the Finance Manager that Customer B could be placing an order of €35,000 and was informed this was not to be done until the sums owing by Customer B were discharged. The Finance Manager could not recall part of the conversation concerning whether the order could be placed if Customer B reduced his account to a certain amount. Ultimately goods to the value of €11,302.77 were released to Customer B who subsequently went into liquidation owing the company €13,000.The Claimant told the Managing Director that he believed Customer B would pay and he had two post dated cheques. It was also subsequently discovered that an invoice had not been raised. A decision was taken to initiate disciplinary action and the HR Manager and Operations Manager conducted the disciplinary process. Prior to the decision to dismiss was made, the Operations Manager asked the Managing Director whether it was possible for the Claimant to take up an alternative position in the group. The Operations Manager decided the Claimant could not continue in the role of branch manager but he was offered the role of sales manager.DeterminationThe Tribunal noted that the Respondent was entitled to conduct an investigation and to discipline the Claimant arising out of his error of judgement which resulted in loss to company. The Tribunal also accepted the bona fides of the Managing Director in that his actions in offering the Claimant a chance to stay in the work place were well intended.The Tribunal noted that the Claimant never realised that his employment was going to be terminated and that his clear belief was that he made an honest mistake and that there would be a sanction but not the loss of his livelihood.The Tribunal also noted that “mixed signals” were being given to the Claimant i.e. the Claimant was being fired but offered an alternative job albeit a demoted role at the same time and concluded that on balance the Claimant’s actions did not amount to gross misconduct such that allowed the company to dismiss him. However the Claimant’s actions were of a very serious nature such that the company was entitled to apply a lesser sanction.The Claimant was awarded €10,000 under the Unfair Dismissals Acts and six weeks notice under the Minimum Notice Acts.

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