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Flawed Procedure Costs Employer €4,500

In the recent case of Adjudication Officer Joe Donnelly, the complainant was awarded €4,500 for unfair dismissal due despite significantly contributing to his own dismissal.

Facts.
The Respondent operates a scrap metal and recycling business. The Complainant was dismissed for gross misconduct after he contacted another recycling company to scrap two buses from a customer of the Respondent. When the director of the Respondent approached the Complainant in the yard and asked for an explanation as to why he did this, the Complainant explained that a son of the owner/director who worked in the business remarked that the firm was not interested in buses from that customer as it was not economically viable for them to scrap them. It was on that basis that he had arranged for delivery to the other company.
The Complainant was suspended on full pay on 27th November 2017 and instructed to attend a meeting on 30th November. The Complainant was requested once again to explain his actions and to put his explanation in writing for consideration. The meeting was terminated and no minutes were kept of the meeting. On 4th December 2017 the directors wrote to the Complainant informing hi, that they had decided to terminate his employment as his actions amounted to gross misconduct and had caused a serious breach in trust. On 8th December 2018 the Complainant wrote appealing his dismissal and requesting copied of his contract of employment, job description and company handbook. No response was received to this letter and no appeal hearing was ever held.

Decision.
In his decision, the Adjudicator determined that there was a clear absence of fair process. Firstly, there has been no staff handbook that laid out the disciplinary processes and the penalties that applied. Secondly, the principal director involved himself in both the investigatory and disciplinary processes. Thirdly, the Complainant was not advised in writing of the precise charges against him, of his right of representation or of the possible disciplinary outcome. Finally, although invited to institute an appeal, no appeal hearing was conducted when the Complainant exercised that option. The Adjudicator concluded that despite the Complainant’s behaviour significantly contributing to his dismissal, he deemed the dismissal unfair due to the absence of fair procedure.

24th October 2018

Anne O’Connell
Solicitors
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2
www.aocsolicitors.ie

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