Can previous history be taken into account when dismissing someone for gross misconduct?

An employer may dismiss fairly for a first instance of gross misconduct. It is also possible to dismiss fairly where a less serious form of misconduct takes place, following previous warnings. In some cases it may be difficult to pinpoint whether behaviour amounts to gross misconduct and it will depend on the facts of the individual case. However, it is generally accepted that it must be an act which fundamentally undermines the employment contract (i.e. it must be repudiatory conduct by the employee going to the root of the contract (Wilson v Racher 1974)). Moreover, the conduct must be a deliberate and wilful contradiction of the contractual terms or amount to gross negligence (Laws v