We reported some weeks back that a Luas inspector was dismissed for spitting at a passenger following provocation. In the EAT the decision was reached that the employee should be reinstated as they were severely provoked during the incident and so re-engagement was ordered for the employee.
The decision from the EAT (UD2196/2011) has now been published and we can clearly see the Tribunals thought process when arriving at their decision. It should be noted that the central facts of the case were not in dispute.
What is interesting to note is that the Tribunal said that when it is a case of gross misconduct there must be substantial grounds justifying the dismissal, which the Tribunal has interpreted as meaning that the ground relied upon should be a matter of substance rather than form, and should be a matter of gravity. Essentially the Tribunal must determine if the penalty of dismissal was proportionate to the offence.
The determination reached stated that the employees conduct "was such as to bring the company into disrepute and would justify a penalty of some sort, but having regard to all circumstances especially the sever provocation would not amount to 'gross' misconduct as the respondent argued."
"As already stated her conduct did merit some penalty, but the penalty should be proportionate . When we add in the element of provocation, and also have regard to her previous excellent record, we are of the view that dismissal was disproportionate."
What is now clear from this decision which was not from the previous reports on the case, is that the redress awarded was not reinstatement (re-engaged with back payment from the date of dismissal) but re-engagement where the employee will return to work as of 1st January 2012 and the period from 1st December 2010 - 1st January 2012 will not be compensated, however they will be deemed to have had continuous service for purposes other than remuneration and leave entitlements.
Employer Advice
Employers must take account of all the circumstances when addressing "Gross Misconduct" issues, context is everything in these matters, and as you can see from the above although an action may well be considered gross misconduct, the mitigating factors (provocation) must be taken into account when making any decision.
