Lynott v Vinaccia and Ors t/a Aldo’s Restaurant [2019] NIIT (CASE REF: 5984/18)

Keywords: Unfair Dismissal; Dismissal v Resignation; Heat of the Moment Argument; One-Off Incidents

The claimant was employed as a chef at the respondents’ restaurant. One shift, an altercation arose between the claimant and the owner. The claimant accepted that he demanded his wages and shouted “I am leaving” but claimed that he was told to get out. The respondent argued that the claimant was asked to leave due to unacceptably aggressive behaviour.

Prior to the incident, the claimant had a clear disciplinary record and enjoyed a good working relationship with his employers. The tribunal determined that in the circumstances, including the pressurised nature of the working environment, a reasonable employer would not have treated the claimant’s conduct as a sufficient reason for dismissal. Citing the 2017 NI Court of Appeal case of Connolly v Western Health and Social Care (https://www.legal-island.com/articles/uk/case-law/2017/october/caroline-connolly-v-western-health-and-social-care-2017/), the tribunal held that, “Dismissals for a single first offence must require the offence to be particularly serious”. The tribunal held that the claimant was unfairly dismissed, albeit with a 20% award reduction due to his aggressive behaviour which objectively amounted to misconduct.

Practical Lessons

The case of Connolly confirms that heat-of-the-moment reactions must be shown to be particularly serious to amount to gross misconduct. In the present case, the fact that the employer got involved in the verbal exchange reduced the likelihood of such a finding. However, the door is certainly not closed to the possibility of a ‘one off’ incident amounting to gross misconduct and Gillen J’s dissenting judgment in Connolly outlines as much.

When an employee’s actions amount to ‘deliberate flouting of what he/she knew was an essential contractual condition’ then gross misconduct is more likely to be found. Interestingly, Mr Lynott in the present case was never presented with written terms and conditions, whereas Ms Connolly’s were detailed. Employers will find it easier to show that such conditions were ‘flouted’ where an employee has signed a written statement to which it can refer.