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28.02.2019

WRC orders reinstatement of bus driver

Allegation of theft

The claimant was employed on a part-time basis as a school bus driver. The bus company employer summarily dismissed the driver over allegations of theft in August 2017. The employer alleged that the driver removed wheel rims from company premises without permission. The employee did not deny that he removed the wheel rims from his employer’s premises. He argued that he had received permission from the garage foreman to take the wheel rims before removing them.

Employee evidence

The employee explained that he took the wheel rims in an open and transparent manner as he had received permission from the foreman to do so. He notified the Workplace Relations Commission (WRC) that the investigation and disciplinary hearings were both conducted by the same person and therefore lacked impartiality. He further explained that no investigation report outlining the investigation’s findings was provided to him which denied him the right to review and dispute the findings. In addition, the employee appealed the decision to dismiss him but no appeal hearing had taken place prior to the unfair dismissal claim being heard by the WRC.

Employer response

The employer replied that the bus driver was dismissed following a substantiated allegation of theft. The employer referred to the driver’s admission that he removed the wheel rims from company property as justification for the dismissal. The employer argued that the driver did not have the relevant permission to take company property.

Regarding the appeal, the employer explained that an appeal was scheduled for hearing. The delay in fixing a hearing date was “due to the large number of Disciplinary Appeals and the serious illness of a member of the Appeals Board”.

Flawed fair procedures

The WRC determination focused heavily on the fact that the services manager was involved in both the investigation and disciplinary stage of the dismissal process. The Adjudication Officer (AO) also noted that the services manager showed the employee CCTV footage of the alleged theft and advised him that he had been “caught stealing rims” and that “they are looking for your head upstairs”. This evidence undermined the objectivity of the dismissal process. 

Inadequate documentation

The AO also highlighted that the documentation relating to the dismissal process was deficient. No investigation report was issued and the letter notifying the employee of the disciplinary hearing did not provide adequate details of the allegations being made against the employee or mention that the employee’s job was at risk.

Unfair dismissal

The AO stated that there was ‘a distinct lack of objectivity and independence in the carrying out of the investigation and disciplinary processes which ultimately led to the dismissal. In this regard, I find that, in the circumstances, the employer’s decision to dismiss the employee must be considered as unfair’.

Failure to hear an appeal

The AO continued, ‘this view is further undermined by the fact that the employee’s appeal of the dismissal decision has not been heard …. compounding the shortcomings of the disciplinary process up to that point.”

Rare order of reinstatement

The AO found that the dismissal of the bus driver was unfair. Given the facts of the case, the AO directed that the claimant be reinstated with effect from the date of dismissal, 25 August 2017, with full salary retrospection to apply. Orders of reinstatement or reengagement are less common as the relationship between the employer and the employee is very often beyond repair if a claim has reached hearing stage in the WRC. Orders of reinstatement entitle employees to receive any loss of earnings they have suffered from the date of the dismissal and therefore tend to be costly orders for employers to bear.

Natural justice and fair procedures

The principles of natural justice and fair procedures must be adhered to when conducting a disciplinary process.

To keep your disciplinary process on track, bear the following points in mind.

  1. The employee enjoys a right to know the details of the case being made against him/her;
  2. The employee enjoys a right to fully respond to the allegations being made;
  3. The employee enjoys the right to have the matter assed by an impartial person. If the same person conducts both the investigation and disciplinary stage of the process, any dismissals will be deemed unfair;
  4. The employee enjoys the right to be accompanied by a colleague or trade union representative at a disciplinary hearing;
  5. The employee enjoys the right to appeal the decision taken by the disciplinary officer and have the appeal heard within a reasonable timeframe.

Need help carrying out a disciplinary process? Please contact the advice line on +353 1 886 0350 to speak with a consultant regarding this or any other HR issue affecting your organisation.

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