The High Court has ordered that a worker be paid her salary and applicable benefits pending trial of her challenge to a purported dismissal for gross misconduct. The interlocutory order does not require the employer to assign her duties and does not prevent further disciplinary steps or termination under the employment contract.
In a judgment delivered on 19 July 2023, Mr Justice Rory Mulcahy found the worker had established a strong case likely to succeed that fair procedures were breached. He said it would be premature to conclude that damages would be the only remedy available, and granted limited interim relief pending trial.
The worker, identified as RM, had worked for more than 20 years for the defendant, identified as SHC, who was the principal of the firm. The judgment preserves the parties’ anonymity. The dispute followed a workplace call on 17 May 2022 and a 28-page letter the worker delivered to the defendant’s home on 15 June 2022. The employer later alleged gross misconduct relating to the delivery and contents of the letter, including alleged confidentiality concerns.
An independent investigator criticised the manner of delivery and the letter’s contents, but did not investigate the worker’s complaints about the defendant or decide whether the conduct amounted to misconduct. The investigator also accepted the worker’s account that she had not acted threateningly and found she had not intended the letter as a threat to make its contents public, while considering the defendant’s interpretation reasonable.
The judge did not identify a basis to challenge the investigation up to delivery of its report. He found, however, a strong case that the employer had departed from the procedure communicated to the worker, which contemplated a decision on whether to hold a disciplinary hearing after the investigation. Instead, the worker was invited to respond in writing to findings said to potentially warrant dismissal.
He also found a strong case that the dismissal decision and appeal arrangements were unfair. The dismissal letter purported to be from the firm’s financial controller but was signed by the defendant, who was also named to decide any appeal. The judge said the worker had a strong case that the complainant acting as appeal decision-maker, alongside the defendant’s apparent involvement in the initial decision, involved at least an element of pre-judgment.
Under the interim order, the worker must undertake to perform reasonable duties required by the employer. The employer may leave her without duties or suspend her, but must continue paying her. The employer is restrained from relying on disciplinary steps taken after receipt of the investigator’s report. The court did not bar further steps based on that report or otherwise prevent termination under the contract. It reserved the precise form of the order and offered to set directions for an early trial.