This question was recently put before Guernsey's Employment and Discrimination Tribunal in an action brought by what even it describes as a "difficult employee".
Here the applicant brought an action against All Island Carpets Limited claiming unfair dismissal after he received a letter terminating his contract of employment on the grounds of "unacceptable absence and threatening behaviour".
At first blush, the employer's actions to dismiss sound fair and reasonable - what employer could be expected to tolerate such conduct? Not so, ruled the Tribunal, which ordered the company to make an award of compensation equal to six months' gross salary. So what went wrong for the company?
Despite the employee having a history of walking-out of his employment without notice, and having the occasional 'dust-up' with the boss, the Tribunal relied on the statutory right not to be unfairly dismissed unless the dismissal was for a fair reason and a fair procedure was adopted.
There were various occasions during the five years of his employment that the applicant had walked out or disappeared without notice, only to re-appear days later. Following each period of absence the company was unsure whether the applicant had resigned and his contract of employment terminated. To avoid uncertainty the company issued new contracts of employment but on less favourable terms than the last; these contracts made no provision for holiday pay.
Following a period of two week's annual leave in which the applicant received no holiday pay, the applicant's mother took it upon herself to attend the company's office and verbally 'sound off' at its staff over the non-payment of her son's holiday pay.
Witness evidence before the Tribunal concluded that her behaviour was threatening and that her actions indicated to all present that the applicant had resigned. After being subjected to this fracas, the company contacted the applicant directly and he confirmed his resignation. However, within 24 hours the applicant sent a text message to the company changing his mind and advising that he would continue to work. Again, a new contract of employment was issued. However, very shortly after entering into this new contract, the applicant was absent from work due to sickness for a total of 14 days. The company's patience had now finally run out and shortly thereafter it served the letter of termination resulting in the applicant's claim for unfair dismissal.
SO WAS THE EMPLOYER ENTITLED TO SAY ENOUGH IS ENOUGH AND TAKE THE STEP TO DISMISS?
To successfully defend the claim, the company had to show that a) the reason for his dismissal was fair; and b) that the dismissal itself was fair, having regard to the reason given.
The Tribunal expressly noted in its ruling that the company had "treated him with tolerance...and had always treated its staff well"; at no time was the Tribunal critical of the company's reaction, in fact it went so far as to sympathise with its predicament. However, the Tribunal ruled that the reasons for the applicant's dismissal were not fair. Firstly, prior to the absence of 14 days, the applicant's previous sickness absence was minimal and there was no evidence to suggest that his absence was excessive or not genuine. The Tribunal commented that even a small employer (such as the company) should be able to manage absence due to the ill health of an employee. The applicant had not shown a level of "unacceptable absence". Secondly, there was no evidence that the applicant had displayed "threatening behaviour" to the company; it had in fact been his mother. Neither of the grounds for dismissal gave the company the right to dismiss.
Further, the actual dismissal itself was not considered to be fair; the letter of termination was served without any prior warning or consultation and this was not justified. Consequently, the Tribunal ruled that the applicant had been unfairly dismissed and the company was ordered to pay compensation accordingly.
This may seem a harsh decision to some, particularly for those of you who also have a "difficult employee" to deal with. The important point to remember here is that the Tribunal did not rule that "unacceptable absence" and "threatening behaviour" are not grounds for a potentially fair dismissal, just that they could not be proven on the facts of this case, nor was the procedure adopted by the company particularly fair.
Therefore, if you find yourself facing a similar situation, then please speak to one of our Employment team to ensure that it is handled correctly before you find yourself paying out when it could so easily have been avoided if it had just been dealt with appropriately.
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.
