Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on how not to run disciplinary hearings.

Case UDD1758 being the case of Select Service Partner Ireland -and- Albert Fordjour is one of those decision which any person interested in employment law whether they are an employment law Solicitor, Barrister, HR/IR Professional or a business owner is a decision which should be read by all.

The facts of the case have been outlined in some depth in press coverage. What is however interesting from an employment Solicitor’s perspective, is the excellent overview of the law set out by the Labour Court. The Court has taken the time and effort to set out what the right to fair procedures is and has quoted a number of cases including Leary -v- National Union of Vehicle Builders 1Ch being a decision of Magarry J as one where it was held that an employee was entitled to natural justice both before an original Tribunal and an Appellant Tribunal. The Court pointed out at page 49 of that Decision Megarry J had stated:

“If a man has never had a fair trial by the appropriate trial body, is it open to an appellant body to disregard its appellant functions and itself give the fair trial which he never had? I very must doubt the existence of any such doctrine.”

And again on the same page he said:

“As a general rule to all events I hold that a failure of natural justice in the trial body cannot be cured by sufficiency of natural justice in an appellant body.”

The Court quoted the case of State (Irish Pharmaceutical Union) -v- Employment Appeals Tribunal ILRM36 where McCarthy J at page 40-41 of the decision stated:

“It is a fundamental requirement of justice that a person or property should not be at risk without the party charged being given an adequate opportunity of meeting the claim as identified and pursued. If the proceedings derive from statute, then, in the absence of any set or fixed procedures, the relevant authority must create and carry out the necessary procedure; if the said or fixed procedure is not comprehensive, the authority must supplement it in such a fashion as to ensure compliance with constitutional justice, for which proposition there is a wealth of authority.”

The Court quoted a number of the cases which had been quoted then by Mr Justice McCarthy. The Court then helpfully pointed out the duty to establish the truth through proper procedures and quoted the case of the Galway-Mayo Institute of Technology -v- Employment Appeals Tribunal and others IEHC 2001 and the decision of Mr Justice Charlton at paragraph 14 of that decision.

The Court quoted extensively but the portion which we believe is particularly relevant is the Section where Mr Justice Charlton stated:

“A Judge, Tribunal or quasi-judicial Tribunal, cannot divert from its duty to discover the law and then to apply it. The law cannot be made up. It must be applied whether it is attractive or unattractive; subject only to the power of the Superior Courts to declare a law unconstitutional as a last resort if the principles of constitutional interpretation cannot otherwise be applied to save it and so to respect the will of the people as expressed in the Oireachtas.”

In that case His Honour also stated:

“When decision making body is drawn into the process of attempting to find out the facts, then it does so in fulfilling the fundamental principle that justice requires to know the truth before it can decide on the remedy. Secondly, a Judge applies a rule of law to his or her decision and a Tribunal is no different from that. Certainty of legal principle is the opposite end of the spectrum to the arbitrary decision making that characterises a totalitarian society.”

This is a very extensive statement of the law and the principles that have to be applied.

In this case the Court pointed outthe Court would find that the Complainant’s behaviour appear to be totally unacceptable but they found that he was not give fair procedures in which the Respondent decided that appearancesand reality were identical and they did not properly investigate and decide one major element of the Complainant’s defence. This was that during the disciplinary process at no stage was the woman who made the complaint interviewed. A letter from her simply was accepted. None of those involved in the disciplinary process ever interviewed the witnesses nominated by the Complainant. The Court determined that because of the procedural deficiencies associated with the complaint and the Complainant’s contribution to the dismissal, that the Complainant’s was entitled to reengagement and they held that he would be reengaged from the 8 January 2018 with the period from the 23rd May to the 8 January 2018 to be considered a period of suspension without pay. The employee was also to be given a final written warning with effect from the 8 January 2018 and he would be reengaged at one level below the grade of unit manger which he had prior to the dismissal. This is the case where it had been alleged that the employee had sought to kiss another employee when they were they coming out of a lift. There are some lessons which must be learn from a case like this.

In this case the employee had contended that the relationship with the relevant employee was more than just dealing with the fellow employee. That may or may not have been the truth. The difficulty is that when such a defence is put forward and it is not investigated there is no way of knowing whether fair procedures had been applied.

It is always our advice to employers in dealing with a disciplinary matter that any defence put forward by an employee should be listened to and investigated. No matter how farfetched it might appear that the person undertaking the disciplinary process either initially or on appeal must ensure at all stages that the employee receives fair procedures. These should be in line with the company disciplinary procedures and if they are not comprehensive enough in line with the Code of Practice and Grievance and Disciplinary Procedure. In addition, employers should ensure that those who will be undertaking disciplinary process on behalf of the employer are trained in how to run a disciplinary process. Where they have not been trained, legal advice from a Solicitor should always be obtained. The role of the Solicitor in such circumstances is not to decide on the disciplinary matter but merely to ensure and to assist the person undertaking their process that fair procedures are applied.

This is a case which we will recommend colleagues who are interested in employment law to read as it is one that shows how an employer can end up on the wrong side of a decision against them simply because fair procedures have not been applied.