The Myth about Gross Misconduct

Many employers make the mistake of assuming that once an employee commits an act which they deem to be Gross Misconduct, an employer is obligated and entitled to automatically dismiss them without notice. However, this is not a foregone conclusion and employers should be very careful to consider each circumstance carefully. 

Most employee handbooks and disciplinary procedures outline a non-exhaustive list of acts which constitute gross misconduct, such as theft, fraud, physical violence, serious negligence or serious breach of health and safety regulations.

However, just because these acts are listed as Gross Misconduct within an employment contract or Handbook, this does not automatically mean that an employee guilty of such acts should be dismissed.

Whilst Gross Misconduct is conduct so serious as to justify the summary dismissal of an employee, what constitutes Gross Misconduct may vary according to the particular circumstances of the employer and environment in which the employee works.

In particular, it must be borne in mind that the Labour court has made it clear that the law takes a very restricted view of what constitutes “Gross Misconduct”.

In looking at the DHL Express (Ireland) Ltd v. Michael Coughlan UDD1738 case for example; the Labour Court endorsed the Employment Appeals Tribunal decision in Lennon v Bredin M160/1978 where it was said that Gross Misconduct applies only to cases of “very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer”.

Bearing this in mind, in a situation where an employer is considering Summary Dismissal for Gross Misconduct, the employer should ask the question; would a reasonable employer class the employee’s behaviour as so serious that it would not be reasonable to continue with the employment relationship or would a warning, even a final one, be a more appropriate sanction.

It must be remembered that a proportionate sanction is part of a fair process and employers should remember that before any consideration of a decision to dismiss for Gross Misconduct, a fair procedure should still be applied, and the matter should be investigated fairly in accordance with the company’s disciplinary procedure.

As always for further guidance and support, please contact our HR Support team and we will be happy to assist you.

By Hugh Hegarty