Many companies are aware of the need to have a proper written grievance and disciplinary procedure in place. For companies considering taking disciplinary action, the Labour Relations Commission’s Code Of Practice on Grievance and Disciplinary Procedures provides guidance on the appropriate steps to take. The steps include :
- An oral warning
- A written warning
- A final written warning
- Suspension without pay
- Transfer to another task, or section of the enterprise
- Some other appropriate disciplinary action short of dismissal
In the case of alleged gross misconduct, for example theft or destruction of the employer’s property, using the normal progressive discipline process outlined above would not be appropriate or necessary. However, even in such instances, the Code Of Practice says that the following procedures should still be complied with :
- That employee grievances are fairly examined and processed
- That details of any allegations or complaints are put to the employee concerned
- That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
- That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
- That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.
These guidelines, though helpful, are still quite general – and provide little in the way of specifics. Correspondingly it may be helpful to employers to be aware of some recent rulings by the Employment Appeals Tribunal in cases of alleged gross misconduct.
For example, in a 2010 hearing where an employee had been dismissed for falsification of timesheets (ref. UD847/2009), the Tribunal was satisfied that the employee “was guilty of misconduct and that as a result of his misconduct, he substantially contributed to his dismissal”. The Tribunal was, however, critical of “procedural defects” by the employer :
- The employer failed to give the employee a reasonable notice period for a meeting.
- The employer was unclear on what the nature of a meeting was to be.
- The employer failed to afford the employee the chance to question witnesses who made adverse allegations against them.
- The employer failed to ensure that the employee had the option of attending a meeting that was disciplinary in nature.
As a result the dismissal was deemed unfair.
In another case where a supermarket employee had acknowledged transferring loyalty card points earned by customers onto her sister’s loyalty card, the Tribunal noted (ref. UD1016/2010) that the employer conceded the following:
- He did not provide written notification of either of two meetings where the matter was discussed – the second of which being the one in which the employee was summarily dismissed.
- He failed to notify her in writing that she could bring a representative with her.
- He failed to notify the employee in writing of her right to appeal.
The Tribunal determined that the behaviour “did not amount to gross misconduct” and correspondingly ruled that the dismissal was unfair. However, given that the employee’s “admitted actions made a substantial contribution to decision to dismiss”, the award against the employer was a “modest” €2500.
This theme of both sides being at fault also emerged in the case of a tyre-fitter with Bridgestone Ireland who allegedly fabricated overtime payment claims. In its early 2012 ruling the Tribunal found (ref. UD1434/2010) that the company’s “investigative and disciplinary procedures were somewhat lacking”. In particular :
- The employee’s immediate supervisor inappropriately acted as investigator.
- The nature of the meeting on July 15th at which the employee was told of his dismissal was a “complete shock” to the employee. (There had been a meeting 2 days earlier at which the employee had outlined how personal and domestic difficulties were what lay behind his absences.)
- The supervisor was the person who (inappropriately) orally and subsequently in written confirmation dismissed the employee.
However, even though the employee “had contributed to what became his downfall” by abandoning his workplace “without notifying his line manager”, the employee still received €45,000 in compensation!
Another interesting unfair dismissals case was brought by a college caretaker who accidentally locked a student in early on the Friday of a bank holiday weekend in 2009. The caretaker had thought the building was empty and the student was forced to contact emergency services to get released. The Tribunal’s ruling (ref. UD281/2010) drew a distinction “between the claimant’s ‘act’ (early closing) and the consequences of his act (leaving a person locked inside)”. The Tribunal said that the case did not warrant dismissal. Correspondingly, the employee was to be re-engaged “from the commencement of the next academic term on the same terms and conditions as applied before his dismissal”.
In April 2012 a ruling was published (ref. UD2028/2009) on a case where the claimant, who worked in an aluminium packing area, allegedly became hostile and aggressive firstly with his shift supervisor and thereafter with other managers. He and the shift supervisor contradicted each other over claims that he had raised clenched fists. The Tribunal found that “that the incident was not investigated in a fair and proper manner“. Two reasons were cited.
Firstly, only one of the parties (the claimant) had been suspended. Secondly, the same managers had conducted both the investigation and disciplinary processes. The Tribunal found that “the claimant behaved badly but what he did does not amount to gross misconduct”. Correspondingly, the sanction was found to be “disproportionate” and the “claimant was unfairly dismissed”. So, once again, you have a case where an employee was at fault but the employer failed to follow a fair procedure and also overreacted in terms of the sanction imposed.
In summary, the theme that emerges from all of these case studies is that employers’ procedures need to be fair and reasonable and applied as such. They also illustrate that Employment Appeals Tribunal rulings should be closely monitored so that employers keep their procedures up-to-date! In so doing employers can learn from the experience of others and reduce the risk of having rulings made against them.
If you would like any advice or help with disciplinary issues, please do call Mary or Liam on 056 7701060 and we’ll be delighted to help.