This month we look at the case of Dunphy -v- HSG Zander Services Ltd. (UD 2361/2010), where the employee was dismissed for Gross Misconduct for driving a Taxi whilst off work sick.
Summary Introduction
The employee here was an electrician and went out sick in 2009 and in June 2010 HSG Zander Services Ltd dismissed the employee for driving a taxi whilst they were on a period of sick leave from HSG. The Employee however argued that he was permitted to drive a taxi outside of working hours and as such this was not a case of Gross Misconduct.
Background
Importantly, the employee had received a final written warning in August 2005 for driving a taxi during working hours, and an agreement was presented to the employee on this matter but was never signed by the employee.
In June 2009 the employee was invited to a meeting to discuss issues with his timekeeping and the employee was sent home due to his behaviour in this meeting. A number of days later the employee arrived at the Employer’s offices unannounced and following this he received a letter alleging aggressive behaviour following that earlier meeting.
An investigative meeting then took place in June 2009 but the employee failed to attend. He began claiming disability benefit and began undertaking extra taxi work from this point onwards, working up to 3 nights and 5 days per week.
The employee was issued notice regarding breach of contract in January 2010. He stated initially that he ceased driving a taxi at this point but then stated that he continued to drive when he needed the money, being maybe 3 or 4 nights per month. A further investigative meeting took place in January 2010.
In April 2010 the Employee’s GP was asked by the Employee to issue a certificate that he was fit to drive and he did so. A disciplinary meeting took place in May 2010. At this meeting Mr. Dunphy was asked if he was driving a taxi and he replied no, and a decision was issued in May 2010 where he was summarily dismissed for working as a taxi driver whilst on extended sick leave. An appeal hearing took place on 25th August 2010 but the decision to dismiss was upheld.
Employment Appeals Tribunal
The EAT heard this claim under the Unfair Dismissals Acts and in that respect they stated that “when the nature of an employee working whilst certified unfit to work arises, an onus is placed on the employee to clearly and satisfactorily explain and justify this, and in doing so seek to establish that his action has not undermined or damaged the relationship of trust that is inherent between an employer and employee.”
The Tribunal found Mr. Dunphy had failed to discharge this onus and had not satisfactorily addressed the breakdown in the relationship of trust that had taken place as a result of his actions. They noted that Mr. Dunphy had deliberately worked as a taxi driver whilst out sick from work, that he did not divulge this to the employer and that eh then lied to his employer when subsequently questioned about it.
The Tribunal stated that “this breakdown was of such consequence as to sunder the relationship between the parties.Since responsibility for this rests with the claimant it is therefore found and determined that the claimant was guilty of gross misconduct and that his claim under the Unfair Dismissals Acts, 1977 to 2007 fails.” The responsibility for the breakdown in the relationship lay with the Employee and therefore found he was guilty of gross misconduct.
Impact
This decision looks at the issue of trust in the employment relationship and as per the EAT findings there is a duty on both the employer and employee to maintain this trust and confidence in the employment relationship. Both parties should act in a manner that is not likely to damage the relationship and any behaviour contrary to this will be taken into account when determining if these actions have irreparably damaged the employment relationship. Importantly in this case is that the employer did follow a disciplinary procedure. While the EAT acknowledged that this procedure wasn’t perfect it wasn’t so flawed as to render the dismissal unfair. Thus, the key lessons to be learned here is that an employer may be able to justify dismissing an employee for this type of behaviour and if they wish to do so then following a fair disciplinary procedure is absolutely crucial to a successful outcome.
