UFD Misconduct

Misconduct

Conduct, or more correctly misconduct, is a potentially fair ground for dismissal.  Conduct may relate to a single incident or to a series of incidents or circumstances over time.  As in other areas, the bona fide opinion of the employer will generally be respected by the WRC, provided that fair and proper procedures have been followed.

It is not a question of the WRC or the employer establishing the guilt or innocence of the employee. As with other areas, the WRC does not assess the truth or otherwise of the claim. It considers the reasonableness of the employer’s actions. If the employer has acted reasonably and has reasonable grounds for the suspicion, then the dismissal is likely to be fair.

“Gross misconduct” may justify dismissal on the spot. In order to justify instant dismissal, the conduct must be sufficiently serious to be characterised as gross misconduct.  It is limited to very serious intentional and deliberate misconduct, which permanently and patently rupture the relationship of mutual trust and confidence. It should not be readily presumed that any misconduct, no matter how serious, constitutes gross misconduct.

Generally, the alleged misconduct must be investigated in accordance with fair procedures.  Even where the case appears “open-and-shut”, fair procedures should be followed.  Even in what appears to be the clearest case of misconduct, there may be circumstances which explain and excuse the particular behaviour.

In misconduct cases, there may be a series of cumulative acts of misconduct, which ultimately justifies a dismissal.  Fair procedures should be followed in relation to each incident. Misconduct may become manifest in many ways.  The entire circumstances will be relevant.


Dishonesty

An employer may potentially dismiss an employee by reason of criminal convictions or dishonesty, which occur outside the course of employment.  However, there must be a link between the crime or behaviour outside the employment and the employment concerned.

Dishonesty, whether by way of theft, false or misleading statement or falsification will almost inevitably constitute serious misconduct. Trust is an integral part of the employment relationship.  Dishonesty is particularly likely to undermine trust and confidence between an employer and employee.

Where an employee is charged with an offence involving dishonesty or theft outside of employment, then it may be reasonable to dismiss prior to conviction. This is on the basis that the circumstances may destroy the mutual obligations of trust and confidence.

There should be a connection between the crime concerned and the work. Cases involving minor assault have been held not to be sufficient, whereas theft has been held sufficient. Even If the employee accepts and admits to the dishonesty, he should be given the opportunity to explain to the employer, any facts or circumstances in mitigation.

The employer is entitled to take reasonable action based on information to hand. This is so, even if the employee is later acquitted, provided that there are fair procedures and the employer reasonably comes to its opinion.


Misconduct in Work

The wilful refusal to comply with lawful and reasonable orders may potentially justify dismissal. An order may relate a matter outside of the scope of employment.  If this constitutes a breach of contract, the employee may be justified in refusing the order.

Where a dismissal arises from incidents between employees, the onus is on the employer to investigate the matters concerned and to afford fair procedures.  A dismissal will be fair if, having afforded fair procedures, it is reasonable in the circumstances for the employer to dismiss.

Policies should exist in relation to matters of conduct.  It should specify what is acceptable, which is not acceptable and the consequences of non-compliance. Absenteeism or lateness may constitute grounds for dismissal.  If it persists and is unjustified, progressive warnings may be appropriate.

Suspension as a punishment, as opposed to a protective measure, may be justified short of dismissal.  This would imply suspension without pay. However, suspension even with pay may be a serious sanction and may require some level of fair procedures and objective justification before it is implemented.


Specific Misconduct

Conduct refers principally to misconduct. Whether misconduct outside of work is relevant depends on whether it can be related to the work. An altercation with a supervisor outside of work was held to justify dismissal in one case.

The ground requires particular care in terms of fair procedures and hearing. The WRC / EAT emphasise fair procedures in the findings of misconduct, more than a review of the substantive merits of the employer’s decision. If following fair procedures, the employer has reasonable grounds to believe the employee is guilty of serious misconduct, the dismissal is likely to be fair.

Disloyalty and passing information to competitors may be sufficient grounds for dismissal. Holding a second job is not of itself, a ground for dismissal unless the other employer is a direct competitor and there is a danger that confidential information is communicated. If the employee actively engages in abuse of confidence or poaching clients, there are likely to be sufficient grounds for dismissal for misconduct.

The employer is entitled to take reasonable action based on information to hand. This is so, even if the employee is later acquitted, provided that there are fair procedures and the employer reasonably comes to its opinion.


Persistent Misconduct

The failure to obey reasonable and lawful orders may be a ground for fair dismissal. The employee has no obligation to follow an order to do something illegal or unreasonable.   What is reasonable will depend on the circumstances. The fact that an order is strictly outside the terms of employment does not necessarily mean that is not unreasonable.

Persistent absenteeism may be misconduct if it is not justified. The employer should undertake a fair review of attendance and establish the reasons for the absence. An employer will rarely be justified in dismissing an employee in the case of first absence. There should be adequate warnings and reviews. The employee should be given the opportunity to make representations. See the section in relation to discipline and grievances.

The employer’s response should be proportionate. In this context, the length of service may be relevant.


Working for Another

Double-jobbing or working for another employer does not necessarily constitute a breach of contract or a basis for a fair dismissal.  However, in some circumstances, it may affect  or rupture trust and confidence between the employer and employee. In some cases, double jobbing may compromise the employer’s confidential information and trade secrets.

In some employments, the terms of employment may expressly or impliedly prohibit involvement in competing activities.  An employer may have a legitimate interest in protecting itself from unfair competition and from breach of his intellectual property rights. Breach of specific terms of the employment contract which protect that interest,  in appropriate circumstances, justify dismissal.

Protection from competition is not legitimate of itself.  However, an employee who abuses confidential information and trade secrets, may both be fairly dismissed and be injuncted breaching his contract or misusing his employer or former employer’s intellectual property.

If an employee in the course of employment, sets up in business in competition with the employer, such as by seeking the employer’s business, this would be almost inevitably a fundamental breach of trust, so that it is likely to be reasonable that the employee is dismissed.


Suspension I

If a suspension is by way of a sanction, then strict fair procedures must be applied and followed in advance. The impact on the employee’s livelihood and good name may make it as serious a sanction as dismissal, even if the suspension is “paid”.

Suspension is commonly undertaken in cases of alleged misconduct, while the matter is under investigation. The objective may be reduce the risk of ongoing damage to the business, preserve evidence, protect others or to prevent repetition  keeping the person in his or her role pending the outcome of what could be a protracted investigation.

Suspension is not usually imposed as a sanction in this context. Suspension is usually on full pay. The traditional justification for suspension is that it prevents repetition on the misconduct, prevents interference with evidence and protects the employer’s reputation and business.


Suspension II

In the absence of good and substantial with a rational basis in the circumstances, suspension pending investigation may be unwarranted. There have been several successful claims based on unwarranted suspensions. It may have a damaging effect of the employee’s reputation and standing which cannot be justified. It may be perceived to be a sanction and may in substance be a sanction, even though it is labelled otherwise. It must be carefully considered and must be demonstrably justifiable.

Confidentiality should be maintained. The matter should be communicated in an appropriate manner to other staff and to clients and customers.  If the misconduct relates to a disputed matter, the parties should be treated equally. This does not necessarily require identical treatment. There must be good objective grounds for treating the protagonists differently.

Suspension should be consistent with the contract of employment. The suspension should be necessary. The suspension should be for no longer than strictly necessary for good objective reasons. Alternatives should be considered. The investigation should be conducted as speedily as possible, consistent with fair procedures.


Rebutting Claim

An employee who has been accused of misconduct, incompetence or other criticism, should be allowed to challenge the facts upon which the claim is made and put forward facts and claims in his or her defence.

In many cases, written representations will suffice.  An oral hearing is preferable. An employee may be entitled to be represented by a workmate or union representative where there is a greater risk of more serious sanctions.  The employee usually has the right to examine and challenge witnesses on whom the employer relies.  Where there is a report, a copy should be given to the employee.

The requirements will vary with the circumstances.  Where the dismissal is based on alleged serious misconduct which is subject to conflicting evidence, more rigorous procedures may be required. An employer need not necessarily follow procedures in a judicial manner. However, a quasi-judicial type approach may be required in more serious cases.  Representation by another employee or by a trade union representative may be appropriate or necessary in some cases.


Sanctions and Appeal

The appropriate sanctions will follow, if appropriate, upon completion of the investigation. Sanctions less than dismissal may be imposed.  This may involve dismissal, demotion, transfer or salary reduction. The employer statement should specify a range of possible sanctions.

Ultimately, it will come down to what is fair and reasonable in the circumstances.  If there are particular circumstances where it would be unreasonable for an employer to engage in extensive warnings and procedures, a dismissal in their absence may be fair.

An employee’s disciplinary procedure may itself provide a right of appeal.  The procedures should set out the nature of the appeal.  It may be a complete rehearing of the matter concerned.  On the other hand, it may be a more limited review, involving an assessment as to whether the decision made was reasonable.

The appeal should be to an independent party.  Otherwise, it may offend the principle that the decision-maker should be unbiased and should be seen to be unbiased.  The appeal should generally be made to a higher level within the organisation.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch. 20

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009  Ch.14 ( 2nd Ed 2017)

Employment Law in Ireland Cox & Ryan 2009 Ch.21

Dismissal Law in Ireland  Redmond 2007

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Employment Law Contracts (Book & CD-ROM)        Beauchamps, Solicitors          2011

Acts

Unfair Dismissals Act 1977 (10/1977)

Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991),

Unfair Dismissals (Amendment) Act 1993 (22/1993)

Protection of Employees (Part-Time Work) Act 2001 (45/2001

Civil Service Regulation (Amendment) Act 2005 (18/2005) (Part 6)

Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007)

Industrial Relations (Amendment) Act 2015 (27/2015), s. 39

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Principles of Irish Employment Law         Daly & Doherty   2010

Termination & Redundancy, What is the law?  Hayes, Barry & O’Mara 2005

Termination of Employment Statutes (IEL)       Kerr  2016

Termination of Employment: Practical Guide for Employers        Purdy         2011

Shorter Guides

Employment Law Nutshell    Donovan, D         2016

Employees: Know Your Rights       Eardly        2008

Essentials of Irish Labour Law       Faulkner    2013

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

Health and Safety Authority http://www.hsa.ie/eng/

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017

UK Periodicals and Reports

The Employment Law Review 8th  Ed.   Erika C. Collins 2017

Industrial Relations Law Reports

Employment Law in Context: Text and Materials 2nd  Ed. David Cabrelli 2016