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Unfair Dismissal and Gross Misconduct

In this case an employee was dismissed on the spot for his intimidatory behaviour and refusal to follow a workplace instruction. The employee lodged a claim for unfair dismissal and the Adjudicator (person hearing the case) noted“…….it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent’s position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process”In cases where the dismissal related to gross misconduct, the Adjudicator referred to te case of O’Riordan versus Great Southern Hotels [UD1469-2003], which set out the test as follows:“In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.“The Adudicator noted that the employee had not been afforded any fair procedure in respect of his dismissal and therefore he had been unfairly dismissed however it was found that the employee“….. was primarily responsible for his own dismissal and the only reason I am finding in favour of his claim for unfair dismissal is because of the Respondent’s failure to provide reasonable and appropriate process in arriving at and implementing the decision to dismiss”.The employee was therefore found to have contributed substantially to his own dismissal and was awarded a reduced compensation payment of €3,500.https://www.workplacerelations.ie/en/cases/2019/october/adj-00013826.html 

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