First published: May 2nd 2017
Last updated: October 20th 2023

A common misconduct issue for employers, particularly in summer months and around Christmas, is employees taking unauthorised leave. This scenario often arises when an annual leave request has been declined, but the employee decides to take the leave anyway.

Let’s take a look at caselaw in the area for further context...

Security Guard Supervisor –v- A Security Company

The claimant was employed as a security guard in 2006 and subsequently promoted to a supervisory role. The complainant submitted a holiday request form to the Operations Manager, seeking a period of time off at Christmas. The company informed the complainant the leave could not been sanctioned during the busy Christmas period.

The Operations Manager advised the complainant to resubmit the request closer to the time to ascertain the viability of the request for leave.

When the Christmas roster was issued, the claimant informed the Operations Manager that he would be unavailable to work over Christmas, as he’d booked his flights back to Poland to spend time with his family.

The Operations Manager instructed him to work as he was needed over the busy Christmas period. He also told the employee that as he had not raised any issues with a roster issued on the 17 December, there would be serious consequences if the employee failed to comply.

When the employee did not attend work as scheduled under the roster, this was viewed as:

• Failure to follow a reasonable management instruction
• Being absent without authorisation

The employer proceeded to treat this as gross misconduct given the circumstances and suspended the employee pending an investigation.

Shortfall in application of fair procedures

The Adjudication Officer considered the facts and found that the employee’s absence did not have a detrimental impact on the business and was, therefore, insufficient to amount to gross misconduct.

In addition, the employer failed to comply with the principles of fair procedures. There was a lack of clarity around the allegations made against the complainant prior to the investigation and the disciplinary hearing. The claimant also had no idea that his dismissal was being contemplated by the employer.

The Adjudication Officer found that the employer was unforgiving and unreasonable towards the complainant and that there was a significant shortfall in the application of fair procedures – and awarded him €10,000 in compensation for unfair dismissal.

Lennon v Bredin – What is gross misconduct?

In this case, the Employment Appeals Tribunal examined gross misconduct and stated… “We have always held that this exemption (employer authority to dismiss for gross misconduct) applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category.”

If you’re dealing with an employee conduct issue, it’s important to refer to the above statement before deciding the behaviour or incident amounts to gross misconduct. The employee’s conduct must be so egregious that it renders the working relationship untenable.

Advice on fair procedures

Should you find yourself in a similar situation, here are our tips for following a correct disciplinary procedure:

• Conduct an investigation into the matter – purely ‘fact-finding’ into the issues of concern.
• Inform the employee of any issues following investigation.
• If suspending the employee, make sure to issue a suspension letter explaining the suspension is a holding measure, and should not be viewed as a pre-determined outcome.
• Invite the employee to a disciplinary hearing, setting out the allegations in the invitation and giving the right to representation.
• Hold the disciplinary hearing, take everything into consideration and issue an outcome.
• Allow the right to appeal.

It’s essential to ensure that a different person conducts each stage of the process. In other words, a manager who handled the investigation should not also chair the disciplinary hearing. And if the employee appeals the decision, it’s vital that an independent person who has played no part in the disciplinary process, handles the appeal.

Ensure the sanction is proportionate to the offence

As the case involving the security guard clearly outlines, if an employee takes leave that wasn’t authorised and goes AWOL, it may not constitute gross misconduct.

Regardless of the exact nature of the issue, employers must act reasonably during the dismissal and disciplinary process to avoid the risk of the decision being contested by an employee and deemed ‘unfair’ by the Workplace Relations Commission.

The sanction should be proportionate to the offence and not a “misplaced, harsh and disproportionate sanction.”

So don’t fire an employee who goes AWOL?

You are perfectly entitled to refuse annual leave when it’s not in line with business needs, but to protect your position, issue the refusal in writing, and carefully consider if the absence amounts to gross misconduct.

You should also ensure you don’t make a kneejerk reaction, consider the matter carefully in a fair disciplinary process and explore all other sanctions that might be appropriate in the circumstances before confirming a dismissal.

Expert advice with unfair dismissal claims

Employees have strong rights under Irish employment law and it’s important that you follow fair procedures before making any decisions on how to deal with an employee’s gross misconduct.

Speak with a Peninsula employment law expert today on 1800 719 216 for advice on how to handle any employee issues affecting your business.