Here the EAT examined whether a childcare assistant in a creche in Dun Laoghaire had first committed an act of gross misconduct and then whether her subsequent dismissal was procedurally fair. The owner of the creche stated that she observed Ms. Misekella being rough with one of the children in her care and two days later following only one conversation Ms. Miskella was dismissed. There was no written contract, nor were there any written procedures for discipline or grievances. Ms. Miskella denied any inappropriate behaviour occurred and she claimed that she had approached her employer to talk about it and was repeatedly refused.
The EAT held that because there were no written procedures, no investigation of the incident, the employee had not being given an opportunity to be heard, was not notified of the fact that there was going be a decision on her dismissal and there was no right of appeal that there was procedural unfairness in this case. In addition to this the EAT found on the evidence put forward that the conduct complained of in this case was not gross misconduct and therefore the response of summary dismissal was disproportionate.