News from the courts: Dismissal award despite “gross misconduct” by employee

Background to the case:

A car salesman was awarded damages of over €2,000 by the Employment Appeals Tribunal for unfair dismissal, despite the Tribunal also concluding the employer had “ample justification” for the dismissal due to “gross misconduct”.

The main points of the case:

  • The claimant, was in clear breach of the implied duty of fidelity and loyalty to his employer, “both in carrying on a competing business and in his actions in attempting to sell his employer’s Peugeot 406 on his own account”.
  • “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”
  • In this case the claimant had not received any written terms and conditions of employment 
  • The claimant had “freely admitted” that he carried out a sideline business. The Tribunal found, on the balance of probabilities, that the claimant had attempted to sell the Peugeot 406 and obtain a profit for himself.
  • The Tribunal felt however that the decision to dismiss was unfair because the disciplinary process was “flawed”, but “mere procedural flaws should not render a dismissal, which is clearly justified, unfair”.
  • The claimant had not been given any opportunity for representation at the meetings, did not know the agenda for the meetings in advance and while a decision to issue a final written warning with a 6 month probation was reached, the claimant was then dismissed after 7 days because according to the respondant the claimant’s performance did not improve.