If there is one thing that employment law has shown over the years it is that gross misconduct can be a rare and elusive thing. Indeed, in the case of Feery -v- Oxigen Environmental T/A Oxigen (UD184/2013) the Employment Appeals Tribunal stated that an employee’s abusive conduct on a phone call was “clearly unacceptable” but still found such conduct to fall short of gross misconduct, awarding the employee €6,500 for unfair dismissal. In this article we look at the lessons that can be learned.
Background & Sickness Absence
The employee in this case worked at a general operative level within the respondent company and had effectively worked at a recycling site in Edenderry since 2006. The employee was dismissed for unacceptable conduct during a telephone conversation between the employee and various members of management.
In and around April or May 2012 it was alleged that the employee had possibly strained his back while maneuvering some goods. The employee stated that the back injury did not improve and he was attending his GP on an ongoing basis and to this end had been out sick for a full week for which he had expected to be paid.
The accepted that the employee believed he would be paid for the week he was out on certified sick leave but noted that this expectation may have been unwarranted as the company gave evidence to the effect that such a payment is entirely at the discretion of management. To confuse matters, the employee had actually been paid for two days’ sick leave immediately after the accident which had given rise to his back complaints.
Heated Discussion
Having taken the issue up with his line manager, the EAT heard that the employee had taken the view that the company were not paying him for the week as they did not a back injury had ever occurred. According to evidence, there was no doubt that the employee over-reacted in this respect and this manifested itself in an unfortunate phone call to the payroll manager. The tone and content of this phone call were clearly unacceptable and the payroll manager was certainly shaken. That said, the employee was advised by the said payroll manager that no accident report form had ever been prepared and/or filed and one would be needed to sanction sick pay for the time off.
The Employer’s Perspective
As it happened, the HR Manager intercepted the phone call and confirmed to the employee that there was no evidence that there had ever been an accident and it seems he had made enquiries about this fact just prior to intercepting the call. The EAT was informed that the employee did not temper his tone when talking to the HR Manager and the conversation ended abruptly when the employee heatedly hung up the phone. The company took the view that the employee lost his temper and behaved in a way that was unacceptable to his work colleagues.
The Employee’s Perspective
On the other hand, the EAT considered the matter from the employee’s point of view and in particular the underlying suggestion that the employee was lying about having had an accident in April 2012. At the time, the employee had gone out on two days’ sick leave for which he was paid. The EAT held that if there was no accident report form then the employee cannot be held responsible as his line manager knew or ought to have known that the employee had hurt himself and was out of work as a result.
In short, the employee had an expectation that he would be paid for a week’s sick leave and rather than being told that this would not happen and the reasons that this decision was being made he was left to find out for himself. In addition to the fact of the loss of a much needed week’s wages the employee was made to feel by his line manager, and the payroll manager and the HR manager that he had fabricated his back injury.
Previous Disciplinary Record
The EAT also considered the employee’s employment as a whole and noted that the employee had a clean disciplinary record and that he had worked hard in increasingly adverse economic conditions as evidenced by the fact that wholesale pay cuts were being implemented in the workplace in 2012.
Conclusion
On balance, the Tribunal found that the employee was unfairly dismissed. In awarding compensation, the Tribunal took into account the fact that the employee’s behaviour was still unacceptable and as such reduced his award to €6,500. The important points that we can learn from this case are as follows:
- Always consider any disciplinary matter from the employee’s point of view; don’t fall into the trap of only looking at an incident from a “company policy” or a principled point of view.
- Do consider the employee’s length of service and whether or not they have a clean disciplinary record. If the employee has been working with you for a long time and never put a foot out of line then a tribunal is far less likely to deem gross misconduct to be a reasonable outcome following a once-off incident.
- Remember that there is a high threshold on what constitutes “gross misconduct”. Don’t readily assume that something is gross misconduct and do seek advices from the Peninsula 24 Hour Advice Service on 01 855 50 50.
