Disciplinary Procedures costs employer €23,000 – inclusion in contract is “unreasonable if not illegal”

Amongst the decisions issues by the Employment Appeals Tribunal this week concerned the case of Jane Mangan v Clontarf Creche Limited UD 955/2011. BackgroundThe Respondent in this case had been operating a crèche and Montessori school for over twenty years and employed the Claimant as a child care assistant in May 2004. Upon commencing employment, the Claimant signed a contract of employment which contained details of inter alia the Respondent’s disciplinary procedure and the Claimant also received documentation concerning good practices in the Respondent organisation.As part of the Respondent’s disciplinary procedures, it provided that “the Respondent reserves the right to depart  from the precise requirements of the procedure outlined below where it was deemed reasonable to do so and where the resulting treatment is deemed to be fair”.An incident occurred on 23rd November 2010 involving children who were under the care of the crèche on a school trip. Two days later three employees including the Claimant were invited to a meeting but not told it was part of an investigation into the alleged incident. No representation was offered and the employees were not informed that dismissal was likely. It was decided by the Respondent to treat the alleged incident as a group scenario rather than each individual role being investigated. The Claimant stated that she had no direct knowledge of the incident however one employee offered to resign which was accepted and ultimately the Claimant and the other employee were dismissed on the grounds of gross misconduct. The witness for the Respondent accepted that she did not follow the disciplinary procedure but cited that it was the Respondent’s choice to depart from normal procedure. The Claimant was offered no right of appeal.The Claimant’s only evidence in this case concerned her effort to mitigate losses.Determination

1. The Respondent accepted that it failed to follow its own disciplinary procedures and its defence in not adhering to these procedures is not acceptable to the Tribunal and contrary to natural justice and its inclusion in the contract is unreasonable if not illegal.
2. The sanction imposed was unnecessarily punitive and does not have regard to all the circumstances in the case.

The Claimant was subsequently awarded €23,000 under the Unfair Dismissal Act 1977( as amended) as well as four week’s pay in lieu of notice