Will an Unfair or Flawed Procedure Result in a Dismissal Being Unfair?

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02.08.2017

Will an Unfair or Flawed Procedure Result in a Dismissal Being Unfair?

Tribunals have not been consistent when it comes to whether or not an unfair procedure automatically renders the dismissal unfair. Whilst procedural flaws alone should not render a dismissal unfair, this is not always portrayed in decisions from the Workplace Relation Commission (WRC).

In order to reduce exposure to successful litigation, it is imperative that employers follow fair procedures when embarking on a disciplinary process, but particular focus should be given when contemplating dismissal.

In order for a dismissal to be considered fair, the dismissal must be in relation to one of the potentially fair reasons to dismiss, as per the Unfair Dismissal Act 1977 – 2007;

(a) Capability – employees’ lack of competence

(b) Conduct

(c) Redundancy

(d) Statutory restrictions

(e) Some other substantial grounds. If the reason for dismissal falls under one of the above headings, it is vital that fair procedure and natural justice are adhered to. The principles of natural justice should be adhered to when following through on any formal procedure that could result in dismissal. The employee has the right to:

  • Be informed of the case against him/her;
  • Have adequate notice of a hearing;
  • Have the right to respond;
  • A fair investigation;
  • Have due consideration given to his/her response;
  • Be accompanied by a representative throughout the process;
  • Appeal the outcome of the hearing and have appropriate notice as to the appeal hearing.

The reasonableness of the decision will always be assessed and therefore consideration of this should always be at the forefront of the decision-maker’s mind. Section 6(7) of the Unfair Dismissal Act 1977- 2007 refers to reasonableness.

It states “… in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so – (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

The following questions should be considered prior to any dismissal:

  1. What is the reason for dismissal?
  2. Is the reason a potentially fair reason under the five grounds listed above?
  3. Is the decision to dismiss reasonable in the circumstances?
  4. Was the dismissal procedure adopted fair, equitable and reasonable?

 

Case Law

In McAvoy v McArdle Transport Limited (2008), €3,600 was awarded by the Employment Appeals Tribunal (EAT) for unfair dismissal. The complainant was a truck driver who was dismissed after being under the influence of alcohol. The award was granted as the respondent did not follow fair procedure during the dismissal process.

 

In Janet Mooney v Oxigen Environmental (2014), the EAT awarded €12,500 for unfair dismissal. The complainant was employed as a customer service representative, who was summarily dismissed for gross misconduct. The complainant worked in an open plan office and used inappropriate language on phone calls to colleagues, she also kept a customer on hold for five minutes while she spoke to a colleague. Having considered the facts of the case the Tribunal stated the following: 

“There is no doubt that the claimant, in verbally expressing herself at work, used expletives and offensive language which was unacceptable to some of her listeners. This scenario cannot be condoned … [Nonetheless] an employer is obliged to apply fair procedures and act reasonably when sanctioning an employee for any misdemeanour … [as] the claimant had an unblemished record [and] there was no evidence that there was an investigation or a suspension in this matter … a clear warning would have sufficed for this first offence and on the face of it the sanction of dismissal was disproportionate.”

 

The case of Atkinson -v- Cope Foundation (UD483/2015) concerned a care worker who allegedly kicked an autistic man in the back as he tried to separate him and another resident involved in a fight. This is an interesting case as the EAT found the procedure that was adapted to be unfair, however, the dismissal to be fair.The EAT stated the following:

“This division finds as a matter of fact and require it to be noted that the disciplinary procedures utilised by the Respondent and the manner in which it was applied fall far below acceptable standards…

Furthermore the human resource manager on behalf of the Respondent gave evidence that the communication of the direction of the board to dismiss the claimant on November 25, 2014 was made to her by the then CEO, who herself was the person who apparently was to have had no involvement at all in the dismissal process yet was the person who heard the appeal of the dismissal in what seems to be a contravention of the basic tenets of the respondent’s disciplinary procedures and process…

Notwithstanding the foregoing, this division finds that the decision to dismiss, on balance, was within the range of reasonable responses and in the circumstances the dismissal is fair. The claim under the Unfair Dismissals Acts, 1977 to 2007 therefore fails.”

 

Although in the above case the dismissal was rendered fair, in order to minimise exposure to an unfair dismissal award, it is important that employers follow their own company procedures, in a fair and transparent manner.

If you have any questions regarding dismissal or fair procedure please contact the advice line on 01 886 0350

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