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

Gross misconduct and dismissal without notice (summary dismissal) can prove challening 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.

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.

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 pitfalls. Lets us look after your employment law needs, leaving you to concentrate on what you do well.

Contact us today.

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Fair Grounds for Dismissal

If you do not use fair grounds you will be caught on a merry-go-round of claims

Under the Unfair Dismissals Acts 1977-2015 a qualifying dismissal is presumed unfair unless it can be justified under certain grounds. It is weighted in favour of the employee because dismissal can have such a major impact on the life of the employee.

In most unfair dismissal cases where the employee succeeds, it arises to a large extent because of the failure of the employer to follow the correct procedure and to base the dismissal on one of the fair grounds for dismissal. The onus is on you the employer to show that there were fair grounds for the dismissal.

How can I as an employer in Ireland fairly dismiss an employee?

There are three hurdles which you must cross.

1. You have to demonstrate that the dismissal was based on one of the fair grounds for dismissal covered under Irish Employment law.

2. You must be able to prove that you followed fair procedures and that you acted fairly.

3. You must avoid any of the automatically unfair reasons for dismissal.

What are the fair grounds for dismissal ?

The grounds for dismissing an employee in Ireland which are considered fair are the following:

• Capability

• Competence

• Qualifications

• Conduct

• Redundancy

• Contravening the law

• Other substantial grounds

Let’s examine each one in more detail.

Capability

In order to show that the employee was not capable of performing their work tasks in a capable manner you need to examine areas of performance such as absenteeism more , lateness, regular absence through injury or illness. This includes short term as well as long term illness/injury. How are those absences impacting the business? Will things improve? Have you warned the employee that dismissal is being considered? The whole area of dismissing an employee on sick leave is difficult. Each case tends to be different. You need to consider every aspect before you decide to dismiss an employee while on certified sick leave from work. Even when you are confident that you have ticked all the boxes, you should seek professional assistance. It can be very useful to have a fresh pair of eyes look at the problem. Then when you take action, you can have the peace of mind that comes from knowing that you are following the correct dismissal procedures.

In the case of absence as a result of long term illness you should obtain medical evidence which indicates that the employee will not be fit to return to work for a long period. You then have to be able to prove that the prolonged absence is negatively impacting the business.

If the employee’s illness comes under employment equality legislation as a disability, you need to ensure that you do not breach any of the employees rights in that area.

Where the issue of capability involves lateness and absenteeism, not based on illness or injury, you need to document the incidence of lateness or absenteeism Keep copies of clocking in records or other time checking software which shows that there is a pattern of lateness and/or absenteeism.

You then need to follow correct procedures. Do you have procedures in place for dealing with this? Are they fair? Do they follow the rules of natural justice? If so, then you must follow them. If not then you need to introduce a policy and procedures straight away. Contact us for help in that regard. Here's an article on procedures and codes of practice

The process should involve proving that there is a problem resulting from the employee’s proven absenteeism/lateness. Then it must be brought to the attention of the employee in a constructive way and the opportunity to improve must be afforded them.

Competence

This refers to the employee’s ability to carry out the tasks involved in their job. What standards are expected from the employee when carrying out the job for which they were hired. See our article on performance reviews

Where the employee falls short of that standard, this must be brought to their attention . They should be told what improvements are required and they must be afforded a reasonable timeframe in which to improve. If agreed improvements do not follow, then you must give the employee a final warning which includes the real possibility of dismissal.

Qualifications

This is probably the most straightforward of grounds. The employee either has or hasn’t the necessary qualifications. Just make sure that when advertising the job and the whole process of filling the post, including the employment contract See , it was made clear that the qualification was an essential part of carrying out the job. The circumstances in which dismissal may arise are ususlly one of two. Either the employee misled you about having the required qualifications, or continuing qualification is required and not achieved. This can arise where continuing professional development is obligatory and the employee fails to comply, having been afforded a reasonable time to do so.

Conduct

This covers a wide area. It can range from Gross misconduct, justifying instant dismissal to ordinary misconduct. You should list the behaviour which is regarded as gross misconduct in your contract of employment. The usual examples include assault,stealing See Fraud at Work , drunk at work see our article on intoxication in the workplace ,  bullying For more see or serious breach of workplace policies.

You should have written Grievance and Disciplinary Procedures See article on Disciplinary Policy , which must be brought to the attention of the employee by way of a copy.

Learn about gross misconduct in this article

For more on disciplinary and grievance at work see

Redundancy

You will have to show that a real redundancy situation exists. The employee must be fairly selected for redundancy. Remember,in the first instance it is the position which is made redundant, not the employee. So get your proofs in order. See our article on Redundancy here

Contravening the law

This does not arise as frequently as other grounds. If a situation arises where it would be against the law for your employee to continue working for you, then you may be justified in dismissing them. It can arise where a driver loses their driving licence and therefore cannot legally drive. You may be expected to offer alternative suitable employment, if same was available. Each case is judged on its own circumstances.

Other substantial grounds

This is a “catch all” ground which covers a situation which does not meet the above criteria but which would be regarded as substantial. You should take independent advice before you act on this ground. Your idea of substantial may not match the Rights Commissioners opinion.

Automatically Unfair Grounds

Employment equality legislation sets out grounds for dismissal which are automatically unfair. For more see

Fair procedures

The common thread running through aall of these grounds is, you must follow fair procedures. You will lose the protection offered by a fair ground if you fail to follow fair procedures when dismissing an employee.

I would like help with setting up and implementing procedures to deal with dismissal , grievance and disciplinary issues.

Contact us and we will be glad to help. 

Spread the knowledge. If you found this article useful, please like and share using any of the social buttons below.

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• redundancy
• dismissal
• grievance
• unfair dismissal
• Fair Grounds
• Disciplinary
• Procedures