In the recent Tribunal case of An Employee v An Employer (UD 538/2011 and RP 749/2011) published this week, the Tribunal was asked to consider whether the Claimant was unfairly dismissed in light of an investigation and disciplinary process undertaken by the employer. Interestingly the Tribunal noted that the failure of the Claimant to appeal his termination did not in any way contribute to it as the Claimant should have been given the opportunity to obtain independent advice.BackgroundThe Claimant worked as a Security/Store Officer with the Respondent from February 2008 to the end of October 2010 and had previously been the subject of disciplinary action.On 19th January 2010 the employee received a verbal warning (subsequently confirmed in writing) regarding the Claimant’s aggressive attitude to other employees. The Claimant also received correspondence dated 16th and 17th August 2010 concerning poor time keeping and leaving keys for the diesel tank on general display. The Claimant stated that he never received a verbal warning.The Respondent sent the Claimant correspondence dated 1st September 2010 outlining a series of issues and inviting the Claimant to attend a meeting. The letter confirmed that the Claimant would attend with two named persons on behalf of the Respondent. The Respondent could not subsequently confirm when this meeting took place and no minutes of the meetings were available. The Respondent confirmed that it believed that correspondence to the Claimant dated 13th September 2010 were the minutes and evidence of the meeting taking place.The Respondent also received a parking fine for a vehicle which the Claimant was driving at the time and also received a complaint from an unnamed individual regarding the Claimant parking in a disabled parking space. The Claimant acknowledged that he received a parking fine but that he paid this himself. In an email dated 28th October 2010 the Claimant was invited to a disciplinary meeting however the Respondent could not confirm if such a meeting took place and relied on a letter to the Claimant dated 29th October 2010 as evidence of a meeting. This letter referenced a meeting with the Respondent and also made reference to a written warning of 19th January 2010 and three further interim warnings for non-performance of work and poor time keeping. The letter subsequently terminated the Claimant’s employment on grounds of offering violence upon a fellow member of staff. The Claimant subsequently confirmed that he did not use or threaten violence and the Respondent accepted that the Claimant did not engage in actual violence. The Respondent however stated that it believed it followed correct procedures in dismissing the Claimant as set out in their employee handbook.The Claimant was offered the right to appeal the decision however he did not avail of this.DeterminationThe Tribunal considered
- the investigative process conducted
- the subsequent disciplinary meeting immediately following which the Claimant was dismissed
- the failure of the Claimant to appeal his dismissal
The Tribunal concluded
- The Respondent failed to provide the Claimant with the opportunity to engage with witnesses whose unchallenged evidence they relied upon in reaching an adverse finding against the Claimant
- The Tribunal was not satisfied that the matters which were investigated and which were the subject matter if the warnings referred to in their entirety could fairly and reasonably be designated as breaches of the Respondent’s written code of conduct.
- The investigation process carried out by the Respondent was flawed.
- In relation to the disciplinary meeting conducted, the Claimant was denied the opportunity to either engage with or respond to the witness who was interviewed by the Respondent before he was dismissed.
- The disciplinary process undertaken by the Respondent was flawed.
- In relation to the appeals process, the Claimant did not engage in the appeals process at any stage including various warnings issued or otherwise. The Tribunal noted “…….it would have been reasonable and appropriate for him to have been given the opportunity to obtain independent advice. It is therefore determined that the failure of the Claimant to appeal his dismissal did not in any way contribute to it”.
- The Tribunal concluded that “..the flaws in the investigative and disciplinary process…….are of such significance so as to render the Claimant’s dismissal unfair” and awarded the Claimant €20,000 under the Unfair Dismissal Acts 1977(as amended).