Sign up to get our news and blogs sent straight to your inbox. Misconduct & unfair dismissal: three HR cases For many employers, terminating a worker’s employment always raises fears of a costly unfair dismissal claim. So if you qualify to bring a claim and there was a dismissal, your employer has to prove that the dismissal was a fair one, that is, that there were fair grounds for the dismissal and that fair procedures were followed. The claimant argued that her dismissal was unfair, and the employment tribunal had agreed. An employment tribunal had to consider the dismissal of an employee who was on a final written warning and then committed a further act of misconduct. When it comes to unfair dismissal that is precisely what the Tribunal should not do – at least until it comes to assess compensation. The most common source of legal rules is the employer’s disciplinary code. Discrimination of any form in the workplace is a cause for concern, but how can discrimination in dismissal or disciplinary procedures be combatted? The Borough of Brent issued court proceedings against Evans and five others for repayment of sums. An employee's dishonesty may constitute misconduct and a valid reason for dismissal. “We accept that in conduct cases the assessment of whether there was a valid reason for the dismissal is to be considered in isolation from the broader context in which the alleged misconduct occurred. It is this finding that the applicant seeks to review and set aside. This came down to the fact that the sex offender was a potential risk to school children, given the unlimited access to pupils’ personal information that a headteacher can offer. However, the employer can prevent this by meeting these 3 conditions: The contract must be in writing and must set out the specific duration of the fixed-term contract or, in the case of a specified-purpose contract, the object of the contract. “In an unfair dismissal case relating to misconduct, the ‘evidentiary burden’ starts with the employer but once the employer provides prima facie proof of the misconduct as alleged, the ‘evidentiary burden’ shifts to the employee to prove his own defence. Unfair dismissal: Social worker ... that the worker contributed significantly to his own dismissal. She also made a grievance regarding mistreatment at work. Published on December 5, 2019 by Sofia Limpo. Deleting their Facebook app and threatening to terminate another subordinate’s employment if they took annual leave. In the case of Mr R Hastings v Kings College Hospital NHS Foundation Trust, the employment tribunal awarded an IT manager £1m following an unfair and discriminatory dismissal by King’s College Hospital NHS Foundation Trust. The HR lesson for employers: Even when you weigh up all the factors, there are still times misconduct will justify dismissal. In McFarlane v Corrective Services NSW, the NSW Industrial Relations Commission found Corrective Services NSW was within its rights to dismiss a corrective services officer who attacked a colleague after a day at the races. These tests help them to weigh up the facts about your case … Read out article: 'A recent case of unfair dismissals'. Although reinstatement and re-engagement are both possible awards, a successful unfair dismissal claim usually results in an employee only receiving financial compensation for loss of … In many cases it will not matter as to the precise date of termination but in cases where timing is crucial (for example where the employee is close to attaining the one-year's service for an unfair dismissal claim) then the employer should consider dismissing in person and carefully documenting the meeting by keeping minutes and confirming the dismissal in writing as well. Please assist. There are some acts which would be universally regarded as gross misconduct, such as stealing from the employer, but in other cases a dismissal is likely to be unfair if the employee can show that he or she did not know their behaviour was so regarded. In this blog, we take a look at some key cases in recent years that add to existing law. Contact us today for more information about our Employment Law, Health & Safety, ... Ms Heffernan took a claim under the Unfair Dismissals Acts, 1977 TO 2007, and the Minimum Notice and Terms of Employment Acts, 1973 to 2005. The NSWIRC found that even when the factors were weighed up against the officer’s misconduct, Corrective Services NSW was justified in dismissing him. Also, where the boundaries lie when it comes to dismissing a worker for bad behaviour. Unfair dismissal occurs when an employer fails to substantiate the alleged misconduct necessitating dismissal.This normally happens after an employer has terminated the employee’s contract of employment (written or otherwise) in violation of the provisions of Section 12(4a) and 12 B (1) and (2) of the Labour Act. Unfair dismissal. Sponsored by BPP law school and top UK law firms, they offer fantastic insights into the legal profession. The claimant made a grievance about the restructuring and re-engagement process in her department. This page tells you more about the legal tests a tribunal will apply to a claim for unfair dismissal for misconduct. Contact him today for an informal chat, without obligation on 01271 342268 or via email at jon.dunkley@wollens.co.uk. Growing up, Merilyn had her sight set on stardom and dreamed of becoming an actor. How much do you know about employment law? Call Us: +44 (0)20 8834 4579 The employer made the decision to dismiss the claimant due to the damage done to the working relationship. The Fair Work Commission found that the allegations were unfounded and implausible, that a proper investigation was not carried out. However, the EAT found that this was an unfair dismissal and, in doing so, deemed certain aspects of the dismissal process to be unfair. Mon - Fri 9:00 to 17:00 GMT. The entire circumstances of the case must be considered under the test of reasonableness within section 98(4) of the Employment Rights Act 1996. In such a case the employee would be entitled to damages covering the notice that should have been given. If they do not, an employee could make a claim for unfair dismissal, even if the reason for dismissing them was valid. Just make sure you always get proper advice before you go through with it. The Fair Work Commission found that it wasn’t relevant if the worker was at work when the video was sent. It's important that an employer uses a fair and reasonable procedure to decide whether to dismiss someone. Terminating a worker’s employment is always a serious decision for any employer. She enjoys working closely with her clients and believes that the best results are built on relationships of rapport, trust and authenticity. Valid reasons for dismissal include: Misconduct, e.g. The following reasons for dismissal are invalid. However, dishonesty does not automatically make the dismissal of an employee one that is not unfair. The claimant was of African Caribbean descent and had an exemplar employment record. One of the reasons behind the tribunal’s finding was that the disciplinary procedure was not fair and did not comply with the ACAS code. In reaching this conclusion, it also cited an express clause in the NSW Government Sector Employment Act, which expressly stated “misconduct” could include after-hours and off-duty conduct. Nor that no formal complaint of harassment was made against the worker. If an employer dismisses an employee on any of the grounds listed in section 187 (1) (f), the dismissal … Corrective Services NSW told the officer his employment would be terminated if he didn’t resign. Evans was dismissed for gross misconduct. A former UK immigration officer wins £16k compensation for unfair dismissal, despite allegations of using ... UK immigration officer wins £16k after unfair dismissal case. S98(4) then clarifies that fairness of a dismissal depends on how reasonably the employer acted in dismissing an employee. For many employers, terminating a worker’s employment always raises fears of a costly unfair dismissal claim. Comment. Our free guides cover everything from deciding on law to studying and practising law abroad. The HR lesson for employers: In the days of social media, conduct away from the workplace can still be work-related, so long as there’s a sufficient connection to employment. When studying any area of employment law, keeping up with recent changes in legislation or new cases makes all the difference in our understanding of how the law protects employees. In Ward v Reece Limited T/A Reece Group Pty Ltd, the Fair Work Commission ruled an employer had unfairly sacked a manager who had allegedly behaved in a racist and inappropriate way. You should also consider whether the action you’re taking is appropriate given their service history and the issues at hand. The reason for dismissal has to be one of a list of potentially legitimate reasons and you, as the employer, must follow a fair procedure, otherwise the dismissal will be unfair and can lead to a claim against the employer in the employment tribunal. if a … Current Criminal Law Issues You Need to Know. I was unfairly dismissed for misconduct on 2 cases. HR Case 1: The stevedore who sent porn She also sang and played the piano, but ended up studying accounting and HR. Before diving into the facts of the case, it is worth mentioning that the purpose of the ACAS code is to provide guidance for employers on what a fair disciplinary or grievance procedure should look like. Their day together turned into a physical fight, and the colleague was badly injured as a result. The second deals with whether an employee had been wrongly accused of gross misconduct, for which she had been dismissed. Unfair dismissal has your employer been reasonable in all the circumstances when dismissing you, ask our experts. The rules set out in Burchell are ‘not well fitted’ to assessing fairness of a dismissal under the second part of the test, where the focus is on the reasonableness of the employer’s actions. Employees claiming to be victims of automatic unfair dismissals for purposes of section 187 (1) (f) must prove two things: first, that they were discriminated against; second that the discrimination was unfair. If you’d like to discuss anything you read in here and how it affects you, get in touch with the Catalina Consultant’s team today. In his reasoning, the Employment Tribunal judge explained that the Claimant was dismissed for reason of gross misconduct, and that conduct can be a potentially fair reason for dismissal. However, for the purpose of a wrongful dismissal claim it is not enough that the employer reasonably suspects that the employee committed an act of misconduct (as it would be in an unfair dismissal County Court or High Court and not claim). The findings of this case strongly emphasise that an employee’s actions or choices, even outside of work, can be considered misconduct or even gross misconduct. An unfair dismissal claim should not be struck out even though there is no prospect of a monetary award, the Employment Appeal Tribunal (EAT) has ruled in the case of Evans vs London Borough of Brent.. gross misconduct may lawfully be dismissed without notice and will not be wrongfully dismissed. MISCONDUCT 1. Nonetheless, the protection of employees from mistreatment remains paramount. employee’s job scope changed and the old job scope no longer exists. Read about a landmark gross misconduct dismissal case in our blog. Unfair dismissal occurs when an employer fails to substantiate the alleged misconduct necessitating dismissal.This normally happens after an employer has terminated the employee’s contract of employment (written or otherwise) in violation of the provisions of Section 12(4a) and 12 B … Evans brought a claim in the employment tribunal against the London Borough of Brent for unfair dismissal. The appellant had a duty to inform the school’s governing body of her relationship with a convicted sex offender. How we view employment rights today has drastically changed with the evolution of the gig economy and a growing emphasis on the issue of discrimination. It was noted that to allow for an uplift in compensation would be to add a punitive element to a compensatory award, at the employer’s disadvantage. For many employers, terminating a worker’s employment always raises fears of a costly unfair dismissal claim. Mr Hastings was dismissed for gross misconduct after an altercation with a third-party van driver in the car park. To sum up, only elements of the ACAS Code are applied where appropriate. Poor performance, e.g. Unfair Dismissal Case 2: Does the ACAS Code of Discipline and Grievance Apply to SOSR D. The Phoenix House case concerns an employee (the claimant) who was dismissed for an irretrievable breakdown in the working relationship with the employer. A single foolish, dishonest act may not always, in the circumstances of a particular case, justify summary dismissal. We often help employers dealing with fair dismissal claims. The claim was stayed pending a separate High Court action. The first requirement in every case concerning the fairness of a dismissal for misconduct is that the employer must prove that the employee contravened a rule applicable to the workplace. What follows is an extract from an important Fair Work Commission which sets out, in classic form, the elements of an unfair dismissal case which was centered around allegations of misconduct. Rather, Despite the fact that swearing is listed in the staff handbook as gross misconduct Kelly could still bring a claim for unfair dismissal because it would be unreasonable of her employer to dismiss her in circumstances in which everybody else was swearing and Kelly … When Mr Hastings made a grievance concerning racial discrimination, no further investigation was made into the grievance and it was swiftly dismissed. taking part in lawful union activities A brief guide to some recent cases on unfair dismissal. Admittedly, the case of Phoenix House Ltd v Stockman & Anormay simply adds to the confusion. If an employee with a previous flawless employment record is dismissed for a single minor act of misconduct, the employer risks a finding of unfair dismissal. When the officer was dismissed anyway, he claimed it was unfair and that Corrective Services NSW hadn’t properly considered all the factors including his 16 years of services, the financial impact of the termination, his age (he was 55) and his unblemished record of conduct. Whilst she hasn’t won her Grammy just yet, she still loves a good karaoke night. The officer, who was heavily intoxicated at the time, was charged and convicted of assault occasioning grievous bodily harm. On the other hand, Judge Mitting emphasised that some elements of the ACAS Code will apply to SOSR dismissals. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. 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. Palmanor Ltd v Cedron, EAT 1978 IRLR 303 Cedron was a night-club barman who argued with his employer and was sworn at by a manager. It ordered Reece to pay him $32,000 plus superannuation. This page is about unfair dismissal law. It also one fraught with risk, so it’s important to know exactly where you stand. In the case, ... the one-off incident did not warrant dismissal on the grounds of gross misconduct. Never miss an update from the Catalina Consultants HR team. Facts A healthcare assistant at a nursing home was dismissed for gross misconduct as a result of sleeping on duty and falsifying residents’ records. Reply to Francois: You may refer an unfair dismissal dispute to the CCMA within 30 days of the date of your dismissal. The officer and his colleague, who was also a family friend, had spent the day drinking. Search through our vast directory. Unfair Dismissal Case 3: A Discriminatory Dismissal? he dismissal will be regarded as automatically unfair if the worker is dismissed for: exercising any of the rights given by the LRA or participating in proceedings in terms of the Act. An employee could claim unfair dismissal through the CCMA in the following circumstances: a contract worker whose fixed-term contract is suddenly ended or renewed on less favourable terms, where the worker expected the contract to be renewed because it has often been renewed before A dismissal is when an employer ends an employee's contract. Explicitly listed as cases or unfair dismissal are those due to discrimination in terms of race, religion, political opinion, marital or socio-economic status, as well as dismissals that arise from trade union activities. Finding the colleagues who received the video were not friends with the worker but for a work colleague relationship. On that note, both Lady Hale and Lord Wilson emphasised that the Burchell rules from British Home Stores v Burchell for investigating misconduct are only relevant to proving the employer has a reason to dismiss. By default only necessary cookies will be used. The basic facts of the case are as follows: The employer’s appeal against the decision was dismissed by the Employment Appeal Tribunal However, the Employment Appeal Tribunal found this application of the ACAS Code problematic because it could also give rise to an uplift in the claimant’s compensation by 25% for the employer’s non-compliance with the Code. The Fair Work Commission disagreed. employer establishes that an employee was engaged in dishonest or disorderly conduct at work. The tribunal found that this was not a dismissal but a ‘general exhortations to get on with the job’. Constructive dismissal is essentially where you feel forced to leave your employment because you can no longer stand your employer’s (or possibly your colleagues’) behaviour towards you. Find out more about employment law in our guide. Also, where the boundaries lie when it comes to dismissing a worker for bad behaviour. A single foolish, dishonest act may not always, in the circumstances of a … The worker claimed the matter was personal, not work related and his employer was invalid in dismissing him. However, whether it applies to dismissals for ‘some other substantial reason,’ has never been expressly stated. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. This was all in the midst of disciplinary proceedings regarding the claimant “barging” into the finance director’s meeting and failing to leave when asked to. Unfair dismissal is sometimes confused with constructive dismissal. Mr Hastings was dismissed for gross misconduct after an altercation with a third-party van driver in the car park. It usually means the same as being sacked or fired. Disciplinary proceedings for gross misconduct and investigation of the facts were more like interrogations. Dismissal may not always be found to be a reasonable and fair decision, even where there is a finding of gross misconduct, as a recent case has reinforced. Unfair dismissal and constructive dismissal. Redundancy, e.g. It must have a genuine belief in the employee’s misconduct. What kind of lawyer would you be? Employers have the added responsibility to ensure that all evidence is reviewed in the process, as opposed to the cherry-picking of criminalising evidence as we see in this case. Several red flags in the case show racial bias in the investigation and disciplinary procedure: Overall, this case clarifies that even if an employer has a disciplinary/ investigation procedure in place, the way in which it is used must be neutral for a dismissal to be fair. Contact us today for more information about our Employment Law, Health & Safety, and HR services. Should I make an unfair dismissal claim? ALL RIGHTS RESERVED. Turning to the issue of fairness, there is both a statutory test, and a test developed by case law. In the case of Mr R Hastings v Kings College Hospital NHS Foundation Trust, the employment tribunal awarded an IT manager £1m following an unfair and discriminatory dismissal by King’s College Hospital NHS Foundation Trust. Issue: Unfair dismissal – successful disciplinary appeal revives employment. An increase in compensation may be difficult to apply to SOSR dismissals, as the ACAS Code was not drafted with the intent to punish employers financially, but only to protect employees. Unfair dismissal in Namibia is defined by the Labour Act, 2007, under which the employer has the burden of the proof that a dismissal was fair. Encouraging one of his female staff to challenge him on his beliefs about the role of women. In considering a wrongful dismissal claim, the Tribunal needs to decide whether or not the employee is guilty of gross misconduct. The HR lesson for employers: Always carry out a proper workplace investigation into any allegations against a worker. Investigations into the altercation were heavily based on CCTV footage at the expense of other evidence that would have supported the claimant’s point of view. Looking at three misconduct decisions, impacting the HR industry, working out exactly what’s likely to lead to a tribunal appearance. Below are two examples of the unfair dismissal cases which our Employment Solicitors have dealt with. Futty v D and D Brekkes Ltd [1974] IRLR 130 This case concerns a man employed in Hull as a fish filleter being rebuked by his supervisor. Leave a Comment Cancel reply. Not only could you receive the retribution you deserve, but you could also be given compensation for your job loss and any stress or upset the situation may have caused. 26 February 2014 Reply . Relying on live warnings: Beattie v Condorrat War Memorial and Social Club. In Colwell v Sydney International Container Terminals, a stevedore was on leave and spending the night drinking heavily when he decided to send a pornographic video to some of his colleagues via Facebook Messenger. As aforesaid, the arbitrator found the employee guilty of misconduct guilty of the offence but found the sanction of dismissal to be unfair. Turning to the issue of fairness, there is both a statutory test, and a test developed by case law. The first case example addresses a dispute as to whether there had been an unfair dismissal or a resignation. The case British Home Stores Ltd v Burchell, 1980, established a three-part test for use in misconduct cases. Unfair dismissal case of alleged gross misconduct at Adare Manor resolved Case taken by former director of engineering and facilities at five-star luxury resort Fri, Mar 8, 2019, 19:44 Dismissal at the end of a fixed-term or specified-purpose contract may be considered unfair under the Unfair Dismissals Acts. Lucy Morris, a solicitor in the employment team of law firm Blake Lapthorn, considers what an employer needs to take into account once it has found that an employee’s actions have amounted to gross misconduct. Any person who is determining whether a dismissal for misconduct is unfair should consider: whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and. 3 proceeded to arbitration. If you feel that you were treated unjustly, then it is worth considering fighting your case. All in all, these cases give a glimpse into the development of unfair dismissal law and its application to the unequal bargaining power of the employer-employee relationship. Procedural fairness Introduction. Do you have a HR case that needs looking at? Jan Truter. Reece alleged the manager had provoked and aggravated a Muslim customer. Guidelines in cases of dismissal for misconduct. Merilyn founded Catalina Consultants in 2012 on the belief that all organisations, regardless of size, should have access to top quality bespoke HR services. Especially before making a decision to terminate their employment. Employees with more than two years’ service have unfair dismissal rights. H However, dishonesty does not automatically make the dismissal of an employee one that is not unfair. To make matters worse, the questions used deliberately presented the claimant as an aggressor. The Supreme Court dismissed Mrs Reilly’s appeal that her summary dismissal was unfair. Automatically unfair dismissals. Unfair Dismissal Case 1: Is Being Dismissed for not Disclosing Your Personal Relationships Unfair? Final Thoughts – Wrongful vs Unfair Dismissal Aside from offering greater scope for employers to dismiss, these cases also highlight the important difference between wrongful and unfair dismissal. Apart from a case involving constructive dismissal a dismissal is presumed to be unfair unless your employer can show substantial grounds to justify it. Find out how we can help. Join our mailing list for weekly updates and advice on how to get into law. One of the claimant’s fundamental duties was to assist the governors in safeguarding pupils; she had failed to do so by not disclosing details of her relationship. The Employment Tribunal upheld Mr Seconder’s claims for unfair and wrongful dismissal. Looking at three misconduct decisions, impacting the HR industry, working out exactly what’s likely to lead to a tribunal appearance. © CATALINA CONSULTANTS 2020. The finding of unfair dismissal was overturned, and the case sent back to a fresh Tribunal to be re-heard. An employer might reasonably believe that the employee committed gross misconduct and successfully defend the unfair dismissal claim, but lose on the issue of wrongful dismissal because the Tribunal believes in the employee’s innocence. Test your knowledge with our two-minute quiz! Unfair Dismissal – Gross Misconduct. We use cookies to give you the best experience on our website. He appealed the decision to dismiss him and his appeal was upheld because he had been on an unpaid break when found asleep. An employee's dishonesty may constitute misconduct and a valid reason for dismissal. WEBSITE BY DRIP CREATIVE, Performance Management & Employee Incentives, Colwell v Sydney International Container Terminals, Ward v Reece Limited T/A Reece Group Pty Ltd, get in touch with the Catalina Consultant’s team today. Ce… The following day he regretted his actions and posted an apology on Facebook. Dismissal is when your employer ends your employment - reasons you can be dismissed, unfair and constructive dismissal and what to do if you're dismissed Merilyn loves to travel with her family, with South Africa being one of her most memorable destinations. They noted in particular that “the claimant had not had a witness or was unaccompanied during some meetings.” Thanks to the decision in Polkey v A E Dayton Services Ltd [1988], employers must continue to ensure their procedure for dismissing employees is fair. Claimed the matter was Personal, not work related and his employer was invalid in him! 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