Recent Tribunal Decisions - Gross Misconduct and Dissenting Opinions

A recent case decision by the EAT has thrown up a very interesting determination to the case of Karen Egan -v- Ulster Bank UD1772/2010 The case is of particular interest for three reasons

1. The employee was dismissed for Gross Misconduct and the tribunal acknowledged that it was Gross Misconduct, yet the dismissal was found to be unfair due to a flaw in the appeal hearing;
2. The tribunal ordered re-engagement in this case; and
3. There is a dissenting decision in this determination where not all members of the tribunal agreed with the decision.

  Gross Misconduct The employee was dismissed for removing a sum of money from the till (to pay for her car that was in a garage and her purse containing her cards was in another car) and had put a debit note in the till to this amount. She called the following day (as she was not due to work) and asked for the amount to be taken from her account (as it was too late to do it the evening before) to reverse the debit note. The Company's handbook labelled this behaviour as Gross Misconduct as they felt it was a failure to exercise adequate control over the cash, and under their handbook examples of Gross Misconduct are

•  The employee was dismissed for Gross Misconduct, and appealed the decision however int he appeal the two officers chairing the appeal disagreed on the decision (one felt dismissal was too sever and the other felt it was appropriate) and the employee was informed her appeal had fallen and the original decision upheld.

The Tribunal in their determination seemed to agree with the assertion that this behaviour was Gross Misconduct, however on the basis that the appeal was flawed found in favour of the employee. This is important as employers need to be aware that the process is as important as the allegations and even in cases where dismissal was justified if there is a flaw in the process it can lead to a tribunal finding in favour of the employee. Re-Engagement In this case the employee was awarded re-engagement as opposed to the more familiar awards of compensation by the EAT. There are three type of  remedy that can be made by a tribunal

• Compensation - the most common remedy and is not just basic salary but also encompasses "allowances int he nature of pay and benefits in lieu of or in addition to pay". it can also be calculated ont he actual loss incurred by the employee as a result of the dismissal. it is capped at 104 weeks gross entitlement
• Re-engagement - is where the employee is ordered to resume work in the position they held immediately prior to the dismissal.
• Re-instatement  -  is where the employee is ordered to resume work in the position they held immediately prior to the dismissal. It is similar to re-engagement however the employee would also be entitled to back payment for the period which they were not working

Whilst re-engagement by itself is not unusual, the fact that the employee was dismissed for Gross Misconduct (which the tribunal acknowledged) and a tribunal then ordered re-engagement is difficult to understand. "the tribunal is satisfied that the claimants action, with regards to leaving a debit note in the till, was covered in the respondents code of conduct and meets the definition of Gross Misconduct contained therein" Gross Misconduct by its nature is a breaking of the employment contract, and in a case where a tribunal has agreed the employee's actions amounted to Gross Misconduct to order re-engagement is unusual to say the least.  Dissenting Opinion In the determination by the EAT there is a reference that there is a dissenting opinion where not all members of the tribunal agreed with the decision. In a tribunal there is the chairperson and an employers representative and an employees representative, and the three will agree a determination, however the Chairperson will have the final say. "When considering the remedy in this case the Tribunal came to a majority decision, with Mr. Morrison dissenting that the claimant be re-engaged into their equivalent role, with the respondent, within six weeks of issuing this determination. In his dissenting opinion Mr Morrison would have awarded compensation as the appropriate remedy." In this case one member (Mr. D. Morrison) felt that compensation would be a more appropriate remedy, but the majority decision was re-engagement and so this was the remedy provided for. It should be noted that one of the major criticisms of the current dispute resolution system is that you rarely ever hear what the dissenting opinion is, and why they arrived at this opinion. In this case we cannot see why the appropriate remedy was seen to be re-engagement as opposed to compensation, as favoured by Mr. Morrison. In virtually every legal system under any head of law you will get the dissenting opinion and full dissenting judgement when the decision is reached. This then allows you a grounding for any possible appeal.  The employer may have favoured re-engagement as opposed to compensation in this case however the details of the determination are limited and do not give direction on this. In the Blueprint document submitted by Minister Bruton for reform of the Industrial relations system, one aspect was for the provision of detailed judgements to be made by dispute resolution bodies, in this case such a detailed judgement would have alleviated a lot of the ambiguity surrounding the determination. This case highlights some significant issues with the current system and a more detailed decision could have clarified a number of issues we have highlighted above.