EMPLOYMENT CASE LAW – Disciplinary
In accordance with legislation, all dismissals are considered unfair, unless the Employer can demonstrate otherwise. Therefore, the Employer must demonstrate that a reasonable decision was made in dismissing an Employee and that a fair procedure was followed.
The Code of Practice on Grievance and Disciplinary procedures (S.I. No. 146 of 2000: Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000) sets out the key principles which must be adhered to in any disciplinary situation. It sets out the rights of an Employee which must be upheld throughout the disciplinary procedure. A breach of the Code of Practice may lead to any dismissal being deemed to be procedurally unfair.
The general principles set out in the Code include:
• The procedure must be rational and fair.
• The basis for any disciplinary action must be clear.
• The range of penalties must be well defined.
• There must be an internal appeals mechanism.
• The procedure should be reviewed in line with current practices.
• Disciplinary procedures should generally commence with an informal stage where the Employees Manager addresses the issue directly with the Employee before the formal process is commenced.
The principles of natural justice must also be adhered to which include:
• Details of any allegations must be put to the Employee.
• The Employee must be afforded an opportunity to respond.
• The Employee should be afforded the opportunity to avail of representation, defined in the Code of Practice as a colleague, or member of a registered Trade Union, but not any other person or body unconnected with the enterprise.
• The Employee has a right to a fair and impartial determination of the issues concerned taking account of relevant factors and evidence.
• It may be appropriate to provide written copies of complaints or allegations, revealing the source of same and allowing the Employee to confront and question any witness/es.
• The consequences of an Employee’s departure from the rules or expectations of the Employer should be explained in policy and procedure, particularly those that may warrant dismissal or suspension.
• An Employee may be suspended on full pay pending the outcome of an investigation.
• The procedure should set out levels of responsibility in terms of who will apply various stages of the procedure.
• Adequate records must be kept in relation to disciplinary situations.
Employer/Employee Expectations
Having a disciplinary procedure in place ensures that Employees are aware of how poor performance, conduct or attendance will be dealt with and aware of the potential negative consequences of these situations.
Employment Rights
A documented disciplinary procedure will help ensure that Employee rights are protected in any disciplinary situations, thus assisting Employers where a claim is made in relation to a dismissal.
Applying the Disciplinary Procedure
The Code of Practice on Grievance and Disciplinary Procedures promotes that an Employees shortcomings, whether they are conduct, attendance or performance related, be brought to the Employee’s attention informally in the first instance, provided that this is appropriate. Unless a situation is very serious, the Code promotes informal resolution, rather than immediate escalation of the issue into the formal process. Similarly, the Code also encourages that levels of disciplinary sanctions be imposed progressively, where suitable.
Stages of the Disciplinary Procedure
The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time. Therefore, every disciplinary procedure is required to have a number of steps, as outlined here:
• Informal Pre-Disciplinary
• Verbal Warning (always to be confirmed to the Employee and recorded in writing)
• First Written Warning
• Final Written Warning
• Dismissal
In the majority of cases, these stages should be applied progressively. Additional sanctions may also be imposed, these should be documented in the disciplinary procedure, e.g. withdrawal of sick pay or demotion of an Employee.
Where the situation arises that the Employer wishes to skip steps of the procedure, care must be taken to ensure that a) this is being done consistently with previous situations of a similar nature and b) that the Employee could reasonably have been expected to know that the issue was so serious as to warrant the Employer skipping steps in the procedure.
In some situations, the Employer may commence the procedure at the final stage, i.e. dismissal. This would generally only occur in cases of gross misconduct, and a fair disciplinary hearing must always be held before deciding to dismiss for the offence concerned.
Appeals
A disciplinary procedure should have an appeals mechanism as per the Code of Practice which should be consistently applied. It is preferable that the Manager hearing the appeal has not been involved in the initial disciplinary in any way as it may affect the right to natural justice. A failure to allow for an appeal could render a disciplinary or dismissal unfair.
Redress
An Employee who feels that he/she has been unfairly dismissed may make a complaint to the Employment Appeals Tribunal or the Rights Commissioner Service. Either has the power to investigate the complaint and to seek documentation etc. in relation to the dismissal. An award of compensation of up to 2 years salary may be awarded against the Employer where he/she is found guilty of unfair dismissal. An Employee may alternatively seek to be reinstated into their old position with back pay or re-engaged by their Employer without back pay.
The Employment Equality Acts, 1998 - 2012
The Employment Equality Acts set out that no person should be dismissed due to their gender (including pregnancy), civil status, family status, age, sexual orientation, disability, race, religion, or membership of the Traveller community. Such a dismissal is referred to as a discriminatory dismissal. There is no service requirement for an Employee to be covered by the Employment Equality Acts.
Where a complaint of discriminatory dismissal is made to the Equality Tribunal, mediation may be offered in order to reach an agreement and/or settlement where appropriate. Alternatively an Equality Officer will investigate the dismissal to determine whether there was any discrimination in the process and whether or not the reason for dismissal was fair. The burden of proof will be on the Employer where the Employee can establish facts from which discrimination may be inferred e.g. no other Employee was dismissed for the same or similar offences.
An Equality Officer may award up to 2 years’ pay as compensation for the effects of the discrimination, and may also order the Employer to undertake a specified course of action.
Case 1 – Fair Procedures in the Disciplinary Process
The Claimant was employed as a Montessori teacher in a crèche from 2008 until her dismissal on 13th July 2011 for allegedly slapping a child on the hand. A Manager for the Respondent Organisation received a complaint on 13th July 2011 from the Mother of a three year old child that the Claimant had allegedly slapped the child. The Manager took written complaints from both the child’s mother and aunt and referred them to the owner of the Respondent Organisation. The owner of the crèche took the complaint and spoke with a second manager, and dismissed the Claimant on the basis of gross misconduct; the Owner met with the Claimant and gave her a previously prepared letter advising of her dismissal. The Claimant was not interviewed prior to her dismissal.
The Claimant denied the allegation and submitted to the Tribunal that she was never told the date of this alleged incident. The Claimant was not given notice of dismissal.
The Tribunal found that in all cases of dismissal for conduct there must be an investigation carried out by the Employer. The onus is on the Employer to show that this investigation was fair and reasonable in the sense of being open-minded and full, i.e. that no issue which may reasonably have a bearing on the decision is left unexplored. The Tribunal found that the way the Respondent dealt with this matter is about as far removed from fair procedures as could be imagined:
• The owner of the crèche did not know the date of the alleged assault
• The Claimant was not interviewed concerning the alleged assault
• The Claimant did not have written statements provided to her
• The decision was made to dismiss the Claimant prior to being interviewed
• Dismissal letter prepared prior to the meeting
• Another Employee attended dismissal meeting as a “witness” for the Claimant – Without the consent or knowledge of the Claimant
The Tribunal found that the Claimant was unfairly dismissed and awarded €26,000 under the Unfair Dismissals Acts, 1977 to 2007.
This case reiterates that Organisations must be fair and reasonable, carry out investigations into alleged incidents, and not have a pre-determined view of the outcome to an investigation. Employers should make the Employee who is subject to an investigation aware of all allegations and complaints against them, provide an opportunity for the Employee to deny the allegations or explain the incident, and seek evidence were the allegations are denied or the facts are in dispute.
Case 2 – Unfair dismissal due to unfair procedures
The Claimant was employed as a pharmacy counter assistant. The manager of the branch where the Claimant worked came to the MD to report allegations made against the Claimant. The MD held a meeting with the branch manager in April/May 2010. The manager brought a number of allegations to the attention of the MD including the following:
• the Claimant threw a stapler at her manager
• threw her coat at a pregnant member of staff. The staff member stumbled and was caught by the manager who saved her fall
• she aggressively pushed a chair down on the floor which caused a member of staff to complain
• the Claimant was asked not to place an order until after her holidays but she went ahead and placed the order anyway
• the Claimant refused to change an incorrectly priced item of stock
• she was using foul language, stamping her feet, grunting, did not want to serve customers and certain customers refused to be served by the Claimant.
A meeting was held with the Claimant, the branch manager and the MD on 13th July 2010. A document was given to the Claimant with the list of complaints made about her. The Claimant accepted most of the complaints but no explanation was given by the Claimant as to her conduct. There was no option but to dismiss the Claimant for gross misconduct.
The MD did not advise the Claimant she was under investigation. There was no oral or written warning. She was not made aware of the serious nature of the investigation.
The Tribunal found that the Respondent did not follow any acceptable procedure in dismissing the Claimant. She had no contract of employment, there were no grievance procedures in place and she was not given any opportunity to have representation at a meeting that lead to her dismissal. The Claimant was not made aware of the seriousness of the meeting and she was given no right of appeal.
In conclusion the Tribunal found that the Claimant was unfairly dismissed within the definition of the Unfair Dismissals Acts but the Tribunal has to take into account the level of contribution that the Claimant made to her dismissal.
The Tribunal awarded the Claimant the sum of € 25,000.00 under the Unfair Dismissals Acts 1977 to 2007.The Tribunal awarded the sum of € 1,584.00, this being an additional four weeks gross wages, entitlement under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
This case highlights the importance of following fair procedure when carrying out a dismissal. The Respondent in this case failed at most stages of the process when:
• There was no contract of employment or grievance procedure in place
• They didn’t alert the Complainant of the seriousness of the incident
• The Complainant was not allowed the opportunity to have representation at the meeting.
The Code of Practice on Grievance and Disciplinary procedures (S.I. No. 146 of 2000: Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000) sets out the key principles which must be adhered to in any disciplinary situation. It sets out the rights of an Employee which must be upheld throughout the disciplinary procedure. A breach of the Code of Practice may lead to any dismissal being deemed to be procedurally unfair.
The general principles set out in the Code include:
• The procedure must be rational and fair.
• The basis for any disciplinary action must be clear.
• The range of penalties must be well defined.
• There must be an internal appeals mechanism.
• The procedure should be reviewed in line with current practices.
• Disciplinary procedures should generally commence with an informal stage where the Employees Manager addresses the issue directly with the Employee before the formal process is commenced.
The principles of natural justice must also be adhered to which include:
• Details of any allegations must be put to the Employee.
• The Employee must be afforded an opportunity to respond.
• The Employee should be afforded the opportunity to avail of representation, defined in the Code of Practice as a colleague, or member of a registered Trade Union, but not any other person or body unconnected with the enterprise.
• The Employee has a right to a fair and impartial determination of the issues concerned taking account of relevant factors and evidence.
• It may be appropriate to provide written copies of complaints or allegations, revealing the source of same and allowing the Employee to confront and question any witness/es.
• The consequences of an Employee’s departure from the rules or expectations of the Employer should be explained in policy and procedure, particularly those that may warrant dismissal or suspension.
• An Employee may be suspended on full pay pending the outcome of an investigation.
• The procedure should set out levels of responsibility in terms of who will apply various stages of the procedure.
• Adequate records must be kept in relation to disciplinary situations.
Employer/Employee Expectations
Having a disciplinary procedure in place ensures that Employees are aware of how poor performance, conduct or attendance will be dealt with and aware of the potential negative consequences of these situations.
Employment Rights
A documented disciplinary procedure will help ensure that Employee rights are protected in any disciplinary situations, thus assisting Employers where a claim is made in relation to a dismissal.
Applying the Disciplinary Procedure
The Code of Practice on Grievance and Disciplinary Procedures promotes that an Employees shortcomings, whether they are conduct, attendance or performance related, be brought to the Employee’s attention informally in the first instance, provided that this is appropriate. Unless a situation is very serious, the Code promotes informal resolution, rather than immediate escalation of the issue into the formal process. Similarly, the Code also encourages that levels of disciplinary sanctions be imposed progressively, where suitable.
Stages of the Disciplinary Procedure
The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time. Therefore, every disciplinary procedure is required to have a number of steps, as outlined here:
• Informal Pre-Disciplinary
• Verbal Warning (always to be confirmed to the Employee and recorded in writing)
• First Written Warning
• Final Written Warning
• Dismissal
In the majority of cases, these stages should be applied progressively. Additional sanctions may also be imposed, these should be documented in the disciplinary procedure, e.g. withdrawal of sick pay or demotion of an Employee.
Where the situation arises that the Employer wishes to skip steps of the procedure, care must be taken to ensure that a) this is being done consistently with previous situations of a similar nature and b) that the Employee could reasonably have been expected to know that the issue was so serious as to warrant the Employer skipping steps in the procedure.
In some situations, the Employer may commence the procedure at the final stage, i.e. dismissal. This would generally only occur in cases of gross misconduct, and a fair disciplinary hearing must always be held before deciding to dismiss for the offence concerned.
Appeals
A disciplinary procedure should have an appeals mechanism as per the Code of Practice which should be consistently applied. It is preferable that the Manager hearing the appeal has not been involved in the initial disciplinary in any way as it may affect the right to natural justice. A failure to allow for an appeal could render a disciplinary or dismissal unfair.
Redress
An Employee who feels that he/she has been unfairly dismissed may make a complaint to the Employment Appeals Tribunal or the Rights Commissioner Service. Either has the power to investigate the complaint and to seek documentation etc. in relation to the dismissal. An award of compensation of up to 2 years salary may be awarded against the Employer where he/she is found guilty of unfair dismissal. An Employee may alternatively seek to be reinstated into their old position with back pay or re-engaged by their Employer without back pay.
The Employment Equality Acts, 1998 - 2012
The Employment Equality Acts set out that no person should be dismissed due to their gender (including pregnancy), civil status, family status, age, sexual orientation, disability, race, religion, or membership of the Traveller community. Such a dismissal is referred to as a discriminatory dismissal. There is no service requirement for an Employee to be covered by the Employment Equality Acts.
Where a complaint of discriminatory dismissal is made to the Equality Tribunal, mediation may be offered in order to reach an agreement and/or settlement where appropriate. Alternatively an Equality Officer will investigate the dismissal to determine whether there was any discrimination in the process and whether or not the reason for dismissal was fair. The burden of proof will be on the Employer where the Employee can establish facts from which discrimination may be inferred e.g. no other Employee was dismissed for the same or similar offences.
An Equality Officer may award up to 2 years’ pay as compensation for the effects of the discrimination, and may also order the Employer to undertake a specified course of action.
Case 1 – Fair Procedures in the Disciplinary Process
The Claimant was employed as a Montessori teacher in a crèche from 2008 until her dismissal on 13th July 2011 for allegedly slapping a child on the hand. A Manager for the Respondent Organisation received a complaint on 13th July 2011 from the Mother of a three year old child that the Claimant had allegedly slapped the child. The Manager took written complaints from both the child’s mother and aunt and referred them to the owner of the Respondent Organisation. The owner of the crèche took the complaint and spoke with a second manager, and dismissed the Claimant on the basis of gross misconduct; the Owner met with the Claimant and gave her a previously prepared letter advising of her dismissal. The Claimant was not interviewed prior to her dismissal.
The Claimant denied the allegation and submitted to the Tribunal that she was never told the date of this alleged incident. The Claimant was not given notice of dismissal.
The Tribunal found that in all cases of dismissal for conduct there must be an investigation carried out by the Employer. The onus is on the Employer to show that this investigation was fair and reasonable in the sense of being open-minded and full, i.e. that no issue which may reasonably have a bearing on the decision is left unexplored. The Tribunal found that the way the Respondent dealt with this matter is about as far removed from fair procedures as could be imagined:
• The owner of the crèche did not know the date of the alleged assault
• The Claimant was not interviewed concerning the alleged assault
• The Claimant did not have written statements provided to her
• The decision was made to dismiss the Claimant prior to being interviewed
• Dismissal letter prepared prior to the meeting
• Another Employee attended dismissal meeting as a “witness” for the Claimant – Without the consent or knowledge of the Claimant
The Tribunal found that the Claimant was unfairly dismissed and awarded €26,000 under the Unfair Dismissals Acts, 1977 to 2007.
This case reiterates that Organisations must be fair and reasonable, carry out investigations into alleged incidents, and not have a pre-determined view of the outcome to an investigation. Employers should make the Employee who is subject to an investigation aware of all allegations and complaints against them, provide an opportunity for the Employee to deny the allegations or explain the incident, and seek evidence were the allegations are denied or the facts are in dispute.
Case 2 – Unfair dismissal due to unfair procedures
The Claimant was employed as a pharmacy counter assistant. The manager of the branch where the Claimant worked came to the MD to report allegations made against the Claimant. The MD held a meeting with the branch manager in April/May 2010. The manager brought a number of allegations to the attention of the MD including the following:
• the Claimant threw a stapler at her manager
• threw her coat at a pregnant member of staff. The staff member stumbled and was caught by the manager who saved her fall
• she aggressively pushed a chair down on the floor which caused a member of staff to complain
• the Claimant was asked not to place an order until after her holidays but she went ahead and placed the order anyway
• the Claimant refused to change an incorrectly priced item of stock
• she was using foul language, stamping her feet, grunting, did not want to serve customers and certain customers refused to be served by the Claimant.
A meeting was held with the Claimant, the branch manager and the MD on 13th July 2010. A document was given to the Claimant with the list of complaints made about her. The Claimant accepted most of the complaints but no explanation was given by the Claimant as to her conduct. There was no option but to dismiss the Claimant for gross misconduct.
The MD did not advise the Claimant she was under investigation. There was no oral or written warning. She was not made aware of the serious nature of the investigation.
The Tribunal found that the Respondent did not follow any acceptable procedure in dismissing the Claimant. She had no contract of employment, there were no grievance procedures in place and she was not given any opportunity to have representation at a meeting that lead to her dismissal. The Claimant was not made aware of the seriousness of the meeting and she was given no right of appeal.
In conclusion the Tribunal found that the Claimant was unfairly dismissed within the definition of the Unfair Dismissals Acts but the Tribunal has to take into account the level of contribution that the Claimant made to her dismissal.
The Tribunal awarded the Claimant the sum of € 25,000.00 under the Unfair Dismissals Acts 1977 to 2007.The Tribunal awarded the sum of € 1,584.00, this being an additional four weeks gross wages, entitlement under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
This case highlights the importance of following fair procedure when carrying out a dismissal. The Respondent in this case failed at most stages of the process when:
• There was no contract of employment or grievance procedure in place
• They didn’t alert the Complainant of the seriousness of the incident
• The Complainant was not allowed the opportunity to have representation at the meeting.
