Petrofac Offshore Management Ltd v Mr D C Wilson considers whether a gross misconduct dismissal may be unfair if the employee has previously received a disciplinary warning in respect of the same offence. In most cases, a one off act of gross misconduct would result in dismissal, but in some exceptional circumstances you may wish to take a step back and give a final written warning, with the proviso that any repetition would result in dismissal.
Mr Wilson was employed by Petrofac but worked on an oil rig operated by Maersk. The latter introduced a process called “Competent Personal Profile” (CPP) which required the crew working on the rig to complete paperwork that demonstrated their competence. Petrofac incorporated this requirement into their contractual handbook. Mr Wilson thought that CPP was not a good process and, unlike other staff, refused to comply with it. He was told that he must comply or would be deemed to be failing to obey a reasonable instruction. The disciplinary procedure was clear that this was a gross misconduct offence which may result in summary dismissal. Clear targets were set for him to complete the CPP. When he failed to meet the first of these, he was given a final written warning and told that he must meet the second deadline, otherwise further disciplinary action could result in his dismissal. Despite this, he still did not complete any of his CPP. He was summarily dismissed and appealed against this, unsuccessfully, and so brought a tribunal claim.
The tribunal had to consider whether he should have been dismissed with notice (given that he had previously received a final written warning for the same offence), or whether his behaviour constituted gross misconduct as per the disciplinary procedure. The tribunal members’ views differed on this: the judge thought that he had wilfully refused to comply with a reasonable management instruction and that constituted gross misconduct; the lay members felt that he should have been given his notice as he had been given a previous final written warning and he had not been expressly warned that his non-compliance would be gross misconduct and could result in his summary dismissal. On appeal, the Employment Appeals Tribunal agreed with the judge. Mr Wilson had persistently and deliberately failed to follow a reasonable management instruction – this was gross misconduct. Whilst the disciplinary procedure provided that gross misconduct could result in summary dismissal, the employer was not obliged to dismiss. Mr Wilson was a long-serving employee, so it was fair to give him a further chance to comply by giving a warning instead, but that should not prevent a summary dismissal if he continued to do so. The EAT overturned the finding of wrongful dismissal and the award of damages.
LEARNING POINTS
This is an interesting case which serves to remind employers that they are not obliged to dismiss an employee without notice if they commit an act which is listed as a gross misconduct offence and that they may choose a more appropriate outcome – which may not necessarily prohibit them from doing so in the future. However, it is imperative to note that the outcome of this case hinged on the circumstances, particularly the employee’s substantial length of service and thus what was fair in the particular situation. Consistency in approach is usually key to issuing a safe outcome.
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