FACTS:
The Complainant who had been employed by the respondent for over 32 years was dismissed on 4th February 2016 on account of gross misconduct. At the time of his contract being terminated the Complainant occupied a significant role within the company and was paid a salary of €50,700 per annum. His responsibilities ranged from mechanical installing, design and manufacturing to the supervision of projects. Following an internal investigation in January 2016, it came to light that the Complainant had breached his contract of employment and the trust and confidence of his employer by overstating his hours worked and having repeatedly and systematically falsified company records. In a later report he was also found to have “not worked to commonly acceptable standards of behaviour, disregarded management instructions to read documents, put himself in a position of ignorance which led to the termination of his employment and gained financially from his actions”. The Complainant was placed on paid suspension to allow for a proper investigation of the allegations which warranted his subsequent dismissal on the grounds of gross misconduct. In light of this, the Complainant made a claim of unfair dismissal against his former employer. The Adjudication Officer found that the Complainant’s claim was well-founded and awarded the sum of €4,225 in compensation. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court. The Labour Court hearing took place on 25 July 2019.
FINDING:
The Labour Court found that during and following the investigation in January 2016, the Respondent failed to apply correct procedure to the dismissal of their employee. The Court was of the view that he did not receive sufficient notice prior to the investigatory meeting to enable him to prepare properly for it, particularly as he was suspended at that meeting. It was also found that the Respondent allowed the same person to take part in both the investigatory and disciplinary meetings, which was deemed to be in breach of fair procedure, especially as that person had suspended the Complainant. However, although the Court found the dismissal procedurally unfair, it is evident that the Complainant played a significant role in the termination of his own contract. In addition, his lack of enthusiasm to resolve the matter as well as a similar lack of cooperation and refusal to answer questions throughout the investigation and disciplinary hearing, justifiably compound the Respondent’s loss of trust and confidence in his integrity. Therefore, the Court took into account, the extent to which the Complainant’s conduct contributed to the financial loss incurred which was €99,000 at the hearing. The Court upheld that the Complainant was unfairly dismissed and ordered the Respondent to pay the Complainant compensation in the sum of €25,000 rather than €99,000, thereby reducing the award by 75% due to the Complainant’s contribution to his dismissal.
TAKEAWAY FOR EMPLOYERS:
Employers should note the importance of adhering to correct procedure when going through the process of dismissing an employee and indeed in all forms of interaction with employees. As provided by the Industrial Relations Act, 1990(Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000: “The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.”
The Labour Court’s decision demands a certain amount of fair procedure to be applied prior to a suspension. This is in line with the High Court case of O’Reilly v. Bank of Ireland and employers should be more mindful before suspending an employee to facilitate an investigation. The decision also highlights the importance of having separate individuals determining the different parts of a disciplinary process.
It is also interesting that the Labour Court took a very dim view of the Complainant’s refusal to answer questions at the disciplinary hearing and his union’s interjections in respect of the process, thereby reducing the award by 75%.
https://www.workplacerelations.ie/en/cases/2019/august/udd1945.html
16th August 2019
Anne O’Connell Solicitors
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2.
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