Unfair Dismissal and Fair Procedure

Unfair Dismissal and Fair Procedure

This arose in case ADJ-00016397 where the Adjudication Officer set out the law on this quoting the case of Redmond on Dismissal Law Third Addition Chapter 13.23 which stated:

‘‘The challenges facing an employer seeking to justify, having dispensed with or disregarded fair procedures, will of course be considerable. Achieving a balance between procedural and substantive justice is difficult. The functional importance of manifest justice in industrial relations cannot be underestimated; good industrial relations depend upon management not only acting fairly but been seen to do so. Breach of a fundamental tenet of natural and constitutional justice will not be condoned by the Workplace Relations Commission or the Labour Court on appeal’’.

The Adjudication Officer also quoted the case of Gearon -v- Dunnes Stores Limited UD367/1988 where the EAT held:

‘‘The right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to the threat of her employment is a right of the complainant and is not a gift of the respondent or the Tribunal…. As a right is a fundamental one under Natural and Constitutional Justice; it is not open to this Tribunal to forgive its breach’’.

The Adjudication Officer pointed out that the passage was applied and endorsed by the Labour Court in Panasov -v- Pottle Pig Farm UDD175 where the Labour Court concluded:

’The Court is of the view that a failure to properly investigate allegations of misconduct or 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 this case the Adjudication Officer held that the dismissal was procedurally unfair and awarded compensation.

It is important for employers to remember that procedural fairness is an inherent part of dealing with any disciplinary matter.

This issue also arose in case ADJ-00022531 where the Adjudication Officer in that case specifically set out the Code of Practice on Grievance and Disciplinary Procedures S.I. No.146 of 2000 which states that the procedure for dealing with such issues reflecting the various circumstances for enterprises and organisations must comply with the general principles of natural justice and fair procedures which include that that employees grievance are fairly examined and processed, that details of any allegation or complaint are put to the employee concerned, that the employee concerned is given an opportunity to respond fully to any such allegation or complaint and that the employee concerned is given the opportunity to avail of the right to be represented during the process.

The Adjudication Officer in that case quoted the case of Magill -v- Thompkins Limited UD1665/2012 where the EAT determined that the dismissal was unfair because:

She was denied due process, and indeed, any process, was not given any details of the complaint against her and had no opportunity to defend herself. Instead, the termination of her employment was presented to her as a fait accompli’’.

In this particular case the employee was called to a meeting without notice and was told there was no requirement for a shop steward. A letter was read to her by the coordinator. She was not advised of a right of appeal. The hearing was conducted by the CEO who had been a party to the decision to dismiss.  The Adjudication Officer quoted the case of the Labour Court in John Cassey -v- A Worker CD/05/596 which stated:

It is not acceptable for the company to send for an individual without indicating the seriousness of the meeting… and then to summerly dismiss that person’’.

The Adjudication Officer held that the process utilised was fundamentally flawed on many levels. The employee was not given a notice of a disciplinary hearing, was not advised of the seriousness of the complaint, was not allowed representation at the hearing and was not advised of the details of the complaint, and was not given an opportunity to respond and was not advised of her right to appeal.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.

Richard Grogan

Author Richard Grogan

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