Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes on the importance of procedures in unfair dismissal cases.

Case ADJ1759 involved an employee who was dismissed for fighting. The only witness stated that the complainant started the physical assault. Both parties were dismissed. The complainant did appeal the dismissal. It is the company policy that fighting is considered gross misconduct. Employees in the past had been dismissed for fighting.

The Adjudication Officer in this case held that there were procedural flaws even though there was clear company policy and precedent relating to fighting.

The Adjudication Officer found that the complainant should have been advised in writing, in advance of the investigation, what the allegations were and the potential seriousness of the outcome, and that he should have been advised of the right to representation.

When the investigation was concluded and it was decided that the complainant had a case to answer, the employer should have escalated the matter to a disciplinary investigation. The complainant should have been advised in writing of the allegation, the potential outcome of dismissal and the right of representation. A witness should have been interviewed; there should have been an investigation into cameras in the vicinity of the altercation; the letter of dismissal should have provided for an appeal of the decision; and he should not have received his P45 at the appeal hearing.

Even though the Adjudication Officer held that the complainant had contributed significantly to the dismissal, an award of €4,500 was still made. This case highlights - if ever matters needed to be highlighted - that the important issue in relation to any dismissal is that fair procedures are applied at all time.

The unfair dismissal legislation has now been around for a considerable period of time. The issue of fair procedures is constantly specified. It has been specified by the High Court, it has been specified by the Employment Appeals Tribunal in the past and the Labour Court and now in the WRC decisions.

No employer should dismiss anybody or put them through a disciplinary or investigation process without getting appropriate legal advice. Fail to do so and an employer runs the significant risk of being caught with an unfair dismissal claim which will be successful.