Correct Procedure, Correct Result: A Gross Misconduct case example

When it comes to the employment law one cannot underestimate the importance of following correct procedures. It has been well established that a dismissal may be deemed unfair on procedural grounds, even in circumstances where the employer may have had a genuine reason to dismiss that employee, such as redundancy or gross misconduct. This is because a Tribunal or Court may consider the reasonableness and conduct of the employer in dismissing an employee when determining if the dismissal was fair or unfair. As such, this regular piece is geared to show that where an employer follows the correct procedure they will get the correct result. Today, we examine the case of Csorba –v- Dunnes Stores (UD 327/2009)

Serious Misconduct

Ms Csorba had breached the company’s value club card procedures as she had several club cards which she would use when customers did not avail of the points when making a purchase. Points would accumulate to vouchers and she then gave the vouchers as presents to friends and family. As such, Ms Csorba had managed to illegitimately amass €370.00 in vouchers.

The Disciplinary Process

Upon becoming aware of this issue, the employee was immediately invited to an investigation meeting, during which she admitted the misconduct. The employee was then promptly suspended on full pay. Subsequently, she was formally invited to a disciplinary meeting at which she was allowed to bring a fellow employee to accompany her. She received 24 hours’ notice of the disciplinary and also received full details of the evidence/documentation that the employer was going to use in making its decision. From here the company made the decision to dismiss the employee for gross misconduct by virtue of her own admissions.

EAT Determination

The employee claimed unfair dismissal but ultimately the EAT found that the decision to dismiss was not unfair. The employee had received a copy of the employer’s value club card policy and the EAT also specifically detailed the fact that the policy had been displayed on a notice board for all staff to view. As such, the employee could not have been unaware that her behaviour would be deemed a gross misconduct offence. The EAT did not find the procedures to be unfair.

Correct Procedure, Correct Result

It is worth noting that the employer in this case actually lost another unfair dismissal case for €24000 in very similar circumstances where another employee had abused a loyalty card scheme. In that case, Heffernan -v- Dunnes Stores (UD 1355/2009) there were some very key differences. Firstly, while the employer had issue ther policy to the employee, they did not make any other attempts to draw it to the employee’s attention, such as displaying it on a notice board. Secondly, when they became aware of the potential misconduct in the Heffernan case they did not take action immediately, as was the case with Ms Csorba. Instead, they waited five weeks before addressing the matter and during that time the employee’s loyalty card behaviour was monitored. These two issues largely contributed to €24000 finding of unfair dismissal even though the facts of the case were very similar to Ms Csorba’s. Thus, what procedural lessons can be learned?

1. Ensure that you have very clear company policies and issue these policies to your employees from the outset of their employment through a formal handbook.
2. In the Heffernan case the EAT stated that it is not enough to just issue policies to an employee and expect them to know them inside out forevermore. Instead they clearly stated that “the onus is on the [employer] to update and remind employees of what is expected of them in the workplace at staff meetings, circulars and through notifications on staff notice boards.” Therefore, employers are advised to ensure that all policies, especially key policies that may lead to gross misconduct for breaches, are brought to employees’ attention regularly and periodically.
3. In the Csorba case the employer took action immediately. This is vital because by allowing the employee to continue to work as normal without addressing the matter, as was the case with Heffernan, will completely undermine the conduct being deemed ‘gross misconduct’.
4. Following an investigation, if you deem the conduct to be potentially gross misconduct then suspend the employee with pay pending the outcome of the formal disciplinary process.
5. Ensure that the employee is given all documentary evidence prior to the hearing, such as the policy they are supposed to have breached, CCTV footage etc.
6. Ensure that the employee is afforded the right to be represented at the meeting by a fellow employee or trade union official. On occasion, legal representation may also be allowable.
7. Ensure that the employee is given sufficient formal notice of the disciplinary hearing. What is deemed sufficient will depend on the circumstances of the case and whether or not the employee can obtain appropriate representation.
8. Correct Procedure, Correct Result: By following a fair procedure throughout employment and during the disciplinary Ms Csorba failed in her claim of unfiar dismissal. Ms Heffernan on the other hand was awarded €24000.