This weeks Landmark Decision looks at the case of Louie Dunphy -v- HSG Zander Services Ltd. (UD2361/2010, RP 3169/2010, MN2303/2010), where the employee was dismissed for Gross Misconduct for driving a Taxi whilst off work sick. Background The employee was an electrician and went out sick in 2009. the Employer dismissed the employee for driving a taxi whilst off sick. The Employee however argues that he was permitted to drive a taxi outside of working hours and as such this was not a case of Gross Misconduct.
Summary The employee 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 Employers offices unannounced and following this received a letter alleging aggressive behaviour following their earlier meeting. An investigative meeting then took place in June 2009 but the employee failed to attend. He (the employee) then 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. The Tribunal considered the procedures followed by the Respondent Company in (a) investigating the claim and (b) in disciplining the complainant. The Tribunal judged that while certain aspects of these procedures were unsatisfactory, they were of insufficient consequences to invalidate the process. The tribunal found "aspects of the employees evidence to be lacking in both credibility and coherence." The Tribunal 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. The Tribunal stated that "this breakdown was of such consequence as to sunder the relationship between the parties." 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 tribunals 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.
