Employee Wins Unfair Dismissal Claim Despite “Clearly Unacceptable” Behaviour

If there is one thing that employment law has shown over the years it is that gross misconduct can be a rare and elusive thing. Indeed, in the case of Feery -v- Oxigen Environmental (UD184/2013) the Employment Appeals Tribunal stated that an employee’s abusive conduct on a phone call was “clearly unacceptable” but still awarded the employee €6,500 for unfair dismissal. Here we look at the lessons that can be learned.

Background & Sickness Absence

The employee worked as a general operative within the respondent company since 2006. Around April or May 2012 it was alleged that the employee had injured his back at work. The injury did not improve and the employee was attending his GP regularly and had been out sick for a full week for which he had expected to be paid.

The Tribunal accepted that the employee believed he would be paid for the week but noted that this expectation may have been unwarranted as the company gave evidence that such sick pay is entirely at management discretion. To confuse matters, the employee had actually been paid for two days’ sick leave immediately after the accident in question.

Heated Discussion

Having taken the issue up with his line manager, the employee had taken the view that the company were not paying him for the week as they did not believe that a back injury had ever occurred. It was noted that the employee over-reacted in this respect which resulted in an unfortunate phone call to the payroll manager. The tone and content of this phone call were clearly unacceptable and the payroll manager was certainly shaken. That said, the employee was advised by the payroll manager that no accident report form had ever been completed and one would be needed to sanction sick pay for the time off.

The Employer’s Perspective

As it happened, the HR Manager intercepted the phone call and confirmed to the employee that there was no evidence that there had ever been an accident. The employee did not temper his tone when talking to the HR Manager and the conversation ended abruptly when the employee heatedly hanging up the phone. The company took the view that the employee had behaved in a way that was completely unacceptable.

The Employee’s Perspective

The EAT considered the matter from the employee’s perspective and in particular the underlying suggestion that the employee was lying about the accident. At the time, the employee had gone out on two days’ sick leave for which he was paid. The EAT held that if there was no accident report form then the employee cannot be held responsible as his line manager ought to have known that the employee had hurt himself and was out of work as a result.

In short, the employee had an expectation that he would be paid for a week’s sick leave and rather than being told that this by his employer he was instead left to find out for himself. In addition, the employee was made to feel by senior management that he had fabricated his back injury.

Previous Disciplinary Record

The EAT also considered the employee’s employment record and noted that the employee had a clean disciplinary record and that he had worked hard in increasingly adverse economic conditions as evidenced by the fact that wholesale pay cuts were being implemented in the workplace in 2012.


The Tribunal concluded that the employee was unfairly dismissed. In awarding compensation, the Tribunal took into account the fact that the employee’s behaviour was clearly unacceptable and thus reduced his award to €6,500. The important points that we can learn from this case are:
  • Always consider any matter from the employee’s point of view; don’t fall into the trap of only looking at an incident from a “company policy” or a principled point of view.
  • Consider the employee’s length of service and whether or not they have a clean disciplinary record. If the employee has been working with you for a long time and never put a foot out of line then a tribunal is far less likely to deem gross misconduct to be a reasonable outcome following a once-off incident.
  • Remember that there is a high threshold on what constitutes “gross misconduct”. Don’t readily assume that something is gross misconduct. For any further information on this matter, please call the Peninsula on 1890 252 923 for a free advice call, quoting SBC2014.

Written by Olwen Smith. For any further information on this matter, please call the Peninsula Advice Service on 1890 252 923 for a free advice call, quoting SBC2014.

Visit Peninsula Advice Service for more Employment Law and Health & Safety updates.

As part of the ‘Use SBC as a channel’ initiative, Peninsula Business Services are offering complimentary Employment Law and Health & Safety advice calls to all SBC members and readers. All you need to do is call Peninsula Business Services on 1890 252 923 and quote SBC.



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