Introduction

A recent and interesting decision by the Labour Court illustrates the implications for employers who fail to follow the required standard of fair procedures when dealing with disciplinary matters. Although the employer had, what the Court described as ‘comprehensive disciplinary procedures’ in place, by choosing to deviate from established procedural requirements they are now facing payment of a significant monetary award.

Background

The employee, Mr. Panasov, was employed by the employer, Pottle Pig Farm, from September 2009, until he was dismissed in November 2015.

The employer contended that the dismissal was on grounds of serious gross misconduct due to a neglect of duty giving rise to serious animal welfare and fire safety, namely, in not feeding piglets he was responsible for, and in leaving the lights on all night, creating a potential safety risk.

Counsel for the employer argued that procedural flaws alone could not render a dismissal unfair as regard must be given to all the circumstances, particularly the substantive reason for dismissing the employee. The employer went on to submit that the employee’s contract of employment, and the disciplinary procedures permits a summary dismissal, where a serious instance of gross misconduct has occurred.

During cross-examination, the employer, confirmed awareness of the employee’s letter appealing the decision to dismiss and stated to the Court that as the matter was so serious, ‘he had no intention of changing his mind on the dismissal’. The employer accepted that the employee was not questioned prior to the decision to dismiss; the dismissal letter did not refer to gross misconduct; the employee was not given a right of appeal and when the employee telephoned him that day, he was informed the dismissal was for failure to feed pigs the previous day. The employer accepted no explanation was sought from the employee.

The parties disputed previous disciplinary history with the employer contending that four verbal warnings and two written warnings had been placed on the employees personnel file. It was submitted that the last warning was issued on 17th April 2015 and stated that a re-occurrence of the employee’s behaviour would result in immediate suspension and ongoing neglect of duty would result in dismissal. The employee denied that he had ever received any verbal or written warnings other than one verbal warning in 2009.

The employee argued that the dismissal was unfair, as the alleged act of neglect of duty, amounting to gross misconduct, took place on a day when he was not at work and he was not afforded the right to appeal the decision to dismiss. Council for the employee argued that even if the alleged act of gross misconduct was true, which was denied, fair procedures were not followed and no inquiry took place.

Decision

Section 6(1) of the Acts provides: –

‘Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances there were substantial grounds justifying the dismissal.’

In this case, the fact of dismissal was not in dispute. Accordingly, there is a statutory presumption that the dismissal was unfair unless there were substantial grounds justifying it. The court submitted that while there may have been procedural flaws in the employer actions when the employee was dismissed, the dismissal was justified when taking account of the previous warnings and the seriousness of the employee’s actions in not feeding the piglets and in leaving the lights on all night, thereby creating a potential safety risk. The Court recognised that the employer had comprehensive disciplinary procedures in place, which included scope for a full investigation and a possible suspension. Immediate dismissal was also provided for in the disciplinary procedures; ‘where we discover you in the process of a serious act of dishonesty’.

However, the Court considered it unreasonable that no explanation for the conclusions deduced by the employer was sought from the employee and was satisfied that the disciplinary procedures were not adhered to. The Court concluded that the manner in which the decision was made to dismiss the employee was devoid of any form of procedural fairness and offended against the principles of natural justice to which he was entitled, as no investigation/enquiry was carried out. The employer came to a conclusion that the employee was guilty of a serious offence without giving him an opportunity to defend himself and/or to respond to the allegations made. He was not allowed any representation and was given no right to appeal.

The Court is of the view that a failure to properly investigate allegations of misconduct or failure to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.

In all the circumstances of the case, the Court was not satisfied that there were grounds for the employee’s dismissal and held he had suffered considerable financial loss as a result of the wrong he had suffered. Consequently, the sum of €30,000 was awarded to the employee as compensation for unfair dismissal.

Commentary

This case illustrates the implications for employers who fail to follow the required standard of fair procedures when dealing with disciplinary matters. Although the employer employer in this instance had what the Court described as ‘comprehensive disciplinary procedures’ available to apply, choosing to disregard such procedures lead to a costly result.

This is unfortunately a common mistake made by employers when dealing with instances of gross misconduct and summary dismissal. Often it is considered, as it was in this case, that an act of gross misconduct, constitutes an act of a such a nature, that an employee does not need to be afforded procedures and can be instantly dismissed. In fact, the reality is, the more serious the allegation, the greater the emphasis an employer should put on adhering to procedural requirements.

Employers must recognise the requirement to follow procedures, or, as in this instance, a potential dismissal may be rendered unfair.

Printable Version: Aperture Partners Advisory – Deviating from Disciplinary Procedures

The material contained herein is for general information purposes only and does not constitute legal or other professional advice. All rights reserved. If you require advice or further information, please contact Barry Crushell, Carmel Byrne, or your usual Aperture Partners contact. ©Aperture Partners 2017

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