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Suspension, Gross Misconduct and Unfair Dismissal

The May case of A Human Resources Practitioner v A Marketing Company ADJ00020660 is a very useful summary of the law around dismissal on the grounds of conduct.In this case the employee was dismissed on the grounds of misconduct after an investigation was conducted into “the irregularity in the manner whereby payment of another employees maternity benefit was paid to her bank account “Although the employee lost their claim for unfair dismissal, the lengthy decision of the Adjudicator in the Workplace Relations Commission deals with a number of important principles and caselaw around some of the key issues involved in some disciplinary processes such as suspension, investigation, right of representation, dismissal and appeal.The Adjudicator noted that the employee was suspended by telephone and that this should have been accompanied by written correspondence. In essence the employee was placed on a holding suspension pending investigation however the Adjudicator made reference to various cases stating “It is potentially capable of constituting a significant blemish on the employees employment record with consequences for her future career “ and “Best practice would indicate that this communication ought to have been in written form to place a fair foundation and clarity in the process . An employer should always therefore write to the employee in respect of any suspension and ensure that the employee is paid whilst suspended.The Adjudicator also stated that she was not satisfied that a witness to the investigation should have co-ordinated or set up the investigation. All parties to an investigation must be independent and employers should try and avoid any inference or suggestion of bias.The Adjudicator also tried to identify how the employer decided on the charge or allegation of gross misconduct. Employers should be very clear as to the charges put to an employee and ultimately remember the key principle of proportionality i.e. does the punishment fit the “crime”?It was noted that the employer allowed the employee the right of representation at all stages of the process. The Adjudicator queried why the employee in this case chose not to have anyone accompany her when she attended the final disciplinary meeting with a two parties from the employer present.The Workplace Relations Commission concluded “…..the respondent has satisfied the substantial grounds test to accompany this dismissal. They have claimed and can rely on the defence of conduct. They did not secure a satisfactory response to their inquiries on the complainants stated error“.It was concluded therefore that the employee’s dismissal was fair and she lost her claim.

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