In the case of Boylan v United Parcel Service of Ireland UD464 [2011] poor procedures in dealing with the employee after he had called his boss a "F****** Moron" have allowed a Tribunal to order reinstatement as a remedy for Unfair Dismissal.
In this case the employee, who was employed since 2002, was suspended after the abusive language and called to an investigation meeting on the incident. The HR Manager found that there was a case to be answered and concluded that the employee had acted inappropriately and should be called to a disciplinary hearing on the matter, the invite letter also raised the point that the issue was deemed to be gross misconduct. So far so good, the employee was suspended, an investigation was held, the employee was invited to a disciplinary hearing, and they were informed that the matter would be treated as gross misconduct.
The matter was then handed over to others to conduct the disciplinary, which again is generally good procedure. The HR manager who chaired the hearing met the employee in the hearing, and was concerned for the employee's welfare as their body language and demeanour were very erratic at this point. The meeting was concluded to be reconvened three days later. at this meeting they asked the employee to attend an Occupational Health Specialist, this specialist recommended mediation between the employee and their Manager (against whom the abusive language was directed), and it was also held that the employee was fit to return to work.
This report was not given to the employee as part of the disciplinary process, and in a reconvened hearing it was decided that the appropriate sanction would be dismissal. The HR manager cited the employees 'lack of remorse' in the way he spoke to the Manager, and also the 'lack of a guarantee that such a scenario would not occur again'. Mediation was not deemed to be appropriate as the HR Manager felt their sole purpose was to determine the sanction.
The Tribunal found that this dismissal was unfair as the procedures adopted by the Employer were not "even-handed", and conversations held at the investigation stage with colleagues were not shared with the employee at the disciplinary stage. It was also cited that no clarification was made as to why the investigation felt it necessary to proceed to disciplinary, what the abusive language was and if the employee had actually cursed at their Manager.
Perhaps the most destructive part of the employers case was that the report from the Occupational Specialist was not shared with the employee , though he was questioned at the hearing on the details provided to the Specialist. the recommendations provided were also ignored by the Employer.
In this case the Tribunal felt that the sanction of dismissal was disproportionate to the act, and ordered the reinstatement of the employee as a result.
Insubordination is a very serious matter, as it can severely undermine a Managers authority however it must be treated carefully, like with offensive comments on social media, the overall picture must be looked at, In the case of Donavan v Dungarvan UDC UD1077/1993 the employees language caused numerous complaints by the public and so dismissal was deemed fair, or in Nugent v CIE [1990] ELR 15 the employee was a bus conductor and made offensive comments to female passengers, so again dismissal was deemed to be fair.
An employer must assess if there has been a disruption at work due to this or affected the working atmosphere. If bad language is the nature of the job then disciplinary action may not be appropriate as the employer and the employee commonly use this language, and it can be difficult to argue that the words spoken are worthy of dismissal. Employers should assess the entire picture and ensure above all that fair procedures are followed.
