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Unfair Dismissal and Gross Misconduct

Summary dismissal (or dismissal without notice) for gross misconduct arises when an employee has behaved in a way which the employer could not be reasonably expected to tolerate. Such behaviour includes incidences of physical assault. In the recent case of Pierce Lynch v Gaelforce Limited ADJ-00031768, the complainant employee got into a physical altercation with a work colleague and was dismissed as a result. The Workplace Relations Commission concluded the employe’s actions amounted to gross misconduct in relation to the altercation with his colleague. The Adjudicator also noted that a fair and transparent investigation and disciplinary process took place and that the decision to dismiss the complainant was “proportionate and was within the range of reasonable responses of a reasonable employer”.

The case also looked at the caselaw surrounding dismissal for gross misconduct. It noted that the key test for determining whether a dismissal for gross misconduct is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

 “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

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