Even when an employee is able to establish that they have been
unfairly dismissed, this is often not the end of the story.
The Employment Tribunal will consider whether any of the
employee's actions should be taken into account.
Culpable conduct by an employee, prior to their dismissal, which
leads directly to their dismissal, will have the effect of reducing
an award. Deductions have been made which range from 10% to
One, or more, of the provisions of Article 77F of Jersey's
employment law must apply.
But this does not mean only conduct which the employer was aware
of at the time of the dismissal. A recent decision handed down by
the Tribunal showed that conduct which comes to light after the
dismissal will also be taken into account if it is linked to the
conduct which led to the dismissal.
Miss G claimed for being unfairly dismissed but admitted to
taking money from the wage packet of a fellow employee without
their permission. During the hearing, evidence was given by another
fellow employee that Miss G had previously taken monies from their
wage packet (i.e. this only came to light after her dismissal had
Miss G had taken the monies from the wage packets when she had
been in the office. The Tribunal considered this to be a breach of
the trust and confidence that had been placed in her by the
For the purposes of reducing the award, the Tribunal was able to
take into account the evidence that Miss G had taken monies from
the wage packets of both fellow employees.
However, notwithstanding the seriousness of Miss G's
actions, this did not reduce her award completely. It was reduced
Despite her culpable conduct, Miss G's complaint for unfair
dismissal was upheld because her employer had failed to:
Undertake a fair investigation into the allegations (the
employer had proceeded directly to dismiss based on its own beliefs
about Miss G's conduct); and
Follow a fair disciplinary process, and only then take the
decision to dismiss her for gross misconduct; and
Offer Miss G the opportunity to appeal the decision; and
The dismissal letter included incorrect and misleading
information about the reasons for the dismissal (referring to Miss
G's attendance and attitude).
The Tribunal found that notwithstanding Miss G's conduct,
her employer did not act fairly or reasonably and accordingly, it
was ordered to pay Miss G 10% of her award for unfair
The following comment made by the Tribunal should also be heeded
by employers: "It is a simple and courteous action by an
employer to inform an employee of the reason for their dismissal
and the Tribunal is respectful of the distress and puzzlement of an
employee who does not know why they have been dismissed".
So, the lesson for employers and organisations (of all sizes) is
even when an employee's actions are so wrong or outrageous that
they entirely warrant summary dismissal, it remains the case that a
fair investigation and disciplinary process needs to be
The decision is also entirely consistent with the need to be
fair and reasonable at all times, as per the Revised Code of
Practice for Disciplinary and Grievance Procedures which came into
force in Jersey on 1 April 2014.
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