In a recent decision Guernsey's Employment and
Discrimination Tribunal dismissed an applicant's claim for
unfair dismissal and held that the respondent employer had acted
reasonably in treating the applicant's misconduct as a
sufficient reason for his dismissal.
In this case the applicant, a former head gardener of the
respondent's premises, brought an action against the respondent
claiming that he had been unfairly dismissed when he suffered an
injury at work and was expected to work whilst being 'signed
off' as medically unfit.
The respondent successfully defended the claim arguing that the
applicant was dismissed not because of any alleged injury but
because of his persistent breaches of the express and implied terms
of his contract of employment. The Tribunal accepted the
respondent's evidence that over the 18 months of his
employment, the applicant continually took extended lunch breaks,
arrived late at work and regularly left early, failed to properly
inform his line manager of his absences at work, failed to provide
any adequate reason for such absences (although evidence before the
Tribunal indicated that the applicant was working at a fast food
outlet) and failed to engage in any form of work including lighter
duties which may hinder or aggravate the applicant's
The Tribunal accepted the respondent's evidence that it had
acted in good faith at seeking to engage the applicant in
alternative lighter duties to enable the applicant to continue to
be paid, and the applicant's refusal to undertake any such work
was unreasonable. The Tribunal also accepted that the
applicant's continued misconduct (despite various previous
warnings) was sufficient to enable the respondent to invoke its
formal disciplinary procedure. The Tribunal's view was that the
actions of the respondent to invoke the disciplinary procedure
which ultimately resulted in the applicant's dismissal fell
into the 'band of reasonable responses' of a reasonable
employer - what more was the employer supposed to do? Taking into
account the size and administrative resources of the employer was a
requirement when deciding what falls within the 'band'. In
this instance, the applicant was only one of two members of staff
and the size/administrative resources of the respondent was
relatively small, it was entirely reasonable therefore for the
respondent to decide that it could not in future trust the
applicant and its decision to exercise the ultimate sanction of
dismissal fell within that band of reasonable responses.
Word of warning - no matter how big or small
your business is, always be mindful to adopt a fair disciplinary
procedure whenever situations of misconduct arise, if you fail to
act (or act appropriately), it could be your business that ends up
paying the consequences.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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