The Labour Court, in its recent decision in the case of DHL Express (Ireland) Limited v Michael Coughlan, has held that the summary dismissal by DHL Express (Ireland) Limited ("DHL") of its employee, Mr Coughlan, was disproportionate and unwarranted.

Mr Coughlan, a courier/van driver for DHL, was dismissed without notice for gross misconduct where his driving was said to have caused €2,500 worth of damage to a DHL van.

At the initial hearing of the case, the Adjudication Officer (AO) found that the sanction applied to Mr Coughlan was disproportionate having regard to all the circumstances and directed Mr Coughlan's reinstatement.

On appeal, the Labour Court agreed with the AO and found Mr Coughlan's dismissal to be unfair within the meaning of the Unfair Dismissals Acts 1977-2015 (the "UD Acts"). The Labour Court varied the award of the AO and granted Mr Coughlan the maximum compensation available under the UD Acts of 104 weeks' compensation, amounting to €72,054.88.

In reaching its decision, the Labour Court highlighted the following shortcomings in the disciplinary process applied to Mr Coughlan's dismissal:

1. Gross Misconduct

The Labour Court stated that the law takes a very strict view as to what constitutes gross misconduct justifying summary dismissal. It referred to the decision of Lennon v Bredin in which the Employment Appeals Tribunal (EAT) found that dismissal, without notice, for 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 employment relationship for a minute longer". The EAT cited violent assault or larceny as examples of such behaviour.

The Labour Court held the basis for which the disciplinary hearing was established - the failure to protect and safeguard company property - did not meet the threshold for misconduct. The Labour Court took note of the fact that Mr Coughlan was permitted to continue driving for DHL for a number of weeks after the incident for which he was later summarily dismissed.

2. Grounds for Dismissal

The Labour Court found that Mr Coughlan was confronted with a number of additional grounds for his dismissal at the disciplinary hearing which he had not previously been advised of either during the investigation stage or in the letter inviting him to the hearing.

These grounds included protection of Mr Coughlan and others against any further lapses of judgement of Mr Coughlan in carrying out his duties as well as the previous warnings he received in respect of damage caused to company and customer property resulting from his driving.

DHL also referred to its duty of care to the public, other staff and Mr Coughlan himself when setting out the basis for upholding the finding of dismissal during the internal appeal of the Respondent's decision.

The Labour Court found that DHL had based its decision to summarily dismiss Mr Coughlan in part on these additional grounds.

3. Proportionality of Sanction

Having concluded that the behaviour of Mr Coughlan could not be considered gross misconduct justifying summary dismissal, the Labour Court found that DHL's decision to summarily dismiss him was disproportionate and unwarranted in all the circumstances.

4. Failure to Consider Alternative Sanctions

The Labour Court found that DHL had failed to consider alternative sanctions before summarily dismissing Mr Coughlan. It noted in particular that Mr Coughlan was not given the opportunity to contribute to the cost of repairs to the company van and the evidence provided by witnesses for DHL made it clear that no lesser sanction was considered. It was noted that the DHL manager, who had conducted the disciplinary hearing, was not aware that the option of dismissal on notice was available to him.

5. Consideration of Previous Warnings

The Labour Court considered that undue weight was given to previous incidents involving Mr Coughlan's driving which had resulted in damage to DHL's company vehicle. Mr Coughlan received a written warning in 2012 and a final written warning in 2013. Both warnings expired 12 months from the date they were applied to Mr Coughlan.

The Labour Court found that the decision of DHL to dismiss Mr Coughlan was informed to a significant degree by these previous incidents when in fact the warnings should have been expunged upon their expiry.

Conclusion

The threshold for gross misconduct is extremely high and so summary dismissal will only be justified in instances of extreme conduct. In most cases, dismissal on notice should be the preferred route.

Employers should ensure that all the issues which the employer will consider during the disciplinary process are notified to the employee in advance of a disciplinary hearing.

Employers should also be mindful of relying on expired warnings in a subsequent disciplinary process.