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What is Gross Misconduct ? (and what to do with it)

Two men fighting aws an example of gross misconduct at workGross misconduct and dismissal without notice (summary dismissal) can prove challenging for employers in Ireland in some circumstances.

This article examines the definition of Gross misconduct, what actions amount to Gross misconduct and what procedures an employer should follow in order to summarily dismiss an employee for Gross misconduct, while at the same time avoiding the pitfalls which can lead to a claim for unfair dismissal.

What is Gross Misconduct?

Gross misconduct can be defined as; Where the misconduct is such that it breaches the bond of trust that must exist between employer and employee, to such an extent that it effectively ends the relationship and warrants dismissal without notice.

Correct procedures must still be followed, but if the outcome is dismissal resulting from gross misconduct, then no notice period or written warning, is required.

 

What actions amount to gross misconduct?

 

The following is not an exhaustive list and it comes with the warning that every case is different. Even when you believe that the employee may be guilty of an act of gross misconduct similar to one of the examples below, you still have to follow the correct procedures before dismissing them.

  • Sexual harassment

  • Deliberate fraud

  • Sleeping at work

  • Fighting, physical assault, abuse

  • Unable to carry out work tasks due to the consumption of drus or intoxicants

  • Possession of illicit drugs, or their supply or use

  • Making a false allegation of injury in the workplace

  • Deliberate refusal to carry out legitimate instructions

  • Deliberate damage to company property

  • Deliberately poor work performance

  • Breach of company confidentiality policy by sharing sensitive information with competitors.

  • Stealing

  • Inappropriate behaviour towards clients

  • Use of company property without obtaining prior approval

  • Bullying, harassment,victimisation, breach of anti-discrimination policy

  • Accepting or offering bribes

  • indecent behaviour

  • major breaches of health and safety rules

 

The test for gross misconduct is “Would it be reasonable to consider this action to be a serious breach of acceptable workplace behaviour.”

To avoid the employee claiming that they didn’t think some actions amounted to gross misconduct it is best to list these borderline areas as gross misconduct. These may include:

  • Viewing or downloading pornographic material

  • Uploading or downloading software which may pose a threat to the company computer system.

  • Using social media in such a way that it has a negative effect on the reputation of the company.

 

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How do I dismiss an employee for gross misconduct?

 

You may be of the opinion that gross misconduct warrants instant dismissal. That is not the case.There are steps which you must follow, before you dismiss someone for gross misconduct. You must hold a fair hearing and investigate the facts. This involves holding a fair hearing and affording the accused an opportunity to respond. You must make them aware of the substance of the gross conduct allegations in advance of the hearing. You must carry out a thorough investigation. This may involve taking statements from witnesses as well as from the accused employee. If there is a potential risk to your business and strong evidence of the alleged misconduct, then you should consider suspending the employee on full pay pending the outcome of the enquiry. This is a serious step and should only be undertaken after consulting employment law experts.

The disciplinary hearing

The whole disciplinary process must follow the rules of natural justice. For more on natural justice and disciplinary procedures see

The Code of Practice on Grievance and Disciplinary Procedures (S. I. 146 of 2000) sets out the principles of fair procedures for employers and employees. You should conduct the hearing in accordance with its recommendations. It is not legally binding, but by adhering to it you should have a good defence to any allegation of unfair behaviour.


Code of Practice, Labour Relations Commission Grievance and Disciplinary Procedure, Download here


The employee should be made aware of the fact that they can be accompanied by a trade union official or work colleague.

They should be given an opportunity to respond to any allegation and cross examine witness if necessary.

When you have heard all of the evidence and the accused employee’s responses you should then come to a decision.

Where you have decided to dismiss the employee you should prepare a formal letter confirming the dismissal without notice. The letter should cover the following:

  • The reason for the dismissal

  • the grounds for the gross misconduct

  • any prior warnings

  • the fact that there will be no notice or pay in lieu of notice

  • The date on which employment ceases

  • Holiday pay and final salary payment arrangements.

  • Reminder to return company property

  • The right to appeal against dismissal

 

What can go wrong when dismissing an employee for gross misconduct?

Most claims for unfair dismissal are won because the employer failed to follow the correct procedures, rather than won because the employee had a more persuasive argument. Our advice is to take your time and follow the procedures to the letter. Do not deviate. If anything you do is held to be unfair, then you will lose the case.

If you suspend an employee without having obtained sufficient evidence, then you may be facing a claim for constructive dismissal, on the grounds of breach of the duty of trust and confidence which must exist in the context of employment.


See also Gross Misconduct Case 


Next steps.

Firing a person for gross misconduct can be a difficult decision to make. You should not make it on your own. Take advice from one of our experts and avoid the expensive pitfalls. Lets us look after your employment law needs, leaving you to concentrate on what you do well.

buttonContact us today.

 

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Image courtesy Meg Rutherford, with some alterations (banner) , cc.15

 

 

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