Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on the issue of lack of representation in unfair dismissal cases.

The issue of an employee not having representation at disciplinary hearings is now coming to the fore in decisions from Adjudication Officers. This is clearly evident from the case of ADJ-6562.

In disciplinary matters it is now important, following the High Court decision which is being followed by Adjudication Officer’s, that employees are given the right of representation and this would include the right to be legally represented following the High Court recent decision.

An award of compensation was made in this case. This case then has to be considered with case ADJ-6768.

In that case the AO has taken a considerable length of time to set out the legislation dealing with the role of an AO and also helpfully set out the issue relating to CCTV. However, in relation to the issue of representation the AO in this particular case has pointed out that the disciplinary procedure provided that the employee could bring a colleague of their choice as a witness. It was argued that the disciplinary procedure was not given to the employee. The AO held that as the employee had 10 years of service, that the employee would have had no difficulty in getting copy of the disciplinary procedure and nothing hangs on the failure of the respondent to provide him with a copy during the disciplinary process. We would be of the view, we could well be wrong that it is necessary for an employer where there is a disciplinary process to take place that a copy of the disciplinary procedure would be furnished. If it is in the Handbook, if the Handbook had been given to the employee at some previous stage, that might be sufficient but it is always in our view best practice that a copy of any disciplinary process is given to the employee.

The Barrister representing the employee in this case complained that the employee had not been advised that they could bring a Solicitor to the disciplinary procedure. The AO pointed out that the company policy is clear and allows to be accompanied by colleague “of your choice”. The AO took the view that because the employee had previously been represented by a Solicitor that it was up to the employee to request the attendance of his Solicitor. We would disagree with this taking account of the case of Lyons -v- Longford Westmeath Education and Training Board IEHC 272 which was quoted by the AO. The employee also contended that he should have been permitted to cross examine a particular manager. The AO held the issue of cross examination in a process that is not supported by legal or trade union representatives is not clear cut. Again, we would be of the view that following the case of Lyons case referred to previously that an employee is entitled to be advised of his or her right to representation and entitled to be advised of their entitlement to cross examine any witness. The AO in this case has stated:

“In my view that, particularly where a dismissal is alleged, an employee can only benefit from the support of a Solicitor or Trade Union representative. In this case however, the Complainant did not request any such representation.”

Again, we would be of the view that it is for the employer to advise rather than for the employee to request.

The fact that an employee may have gone to a Solicitor about a Personal Injury matter, as in this case, in our view, does not mean that the employee would necessarily understand their right to legal representation particularly where the particular disciplinary policy actually did not allow representation and only allowed a colleague to be brought as a witness which would appear to preclude examination, cross examination and legal representation or even Trade Union representation.

Our comment in relation to this case is that one or other of the AO’s is wrong as to their interpretation of the law. This is not a criticism of either. Both cannot be right.

For those dealing with these type of cases it is preferable that there would be a standard approach by all AO’s in relation to these cases. Whether all will be right or all will be wrong is an issue that will be determined elsewhere but at least there will be consistency.

One of the advantages of the cases going online now is of course that inconsistencies are there which enables comments to be made.

It is likely that the Labour Court is going to give a definitive ruling on this issue sooner rather than later. That will be welcomed. Once the Labour Court gives a ruling then the position in the Labour Court is that they have consistently followed the decisions of other divisions in the Labour Court. This brings consistency at that level. In addition, once the Labour Court have ruled all AO’s will be required to follow the ruling by the Labour Court. That will bring consistency.

There have been a lot of discussions about the Lyons case. The reality of matters is that this issue at some stage may well head back to the High Court. Arguments have been made that there are other cases which give a different approach to disciplinary hearings. In the case of employers relating to disciplinary hearings it is our view at the present time, pending clarification of matters by the Labour Court who consistently have been very strong in reviewing legislation in giving reasoned decisions, that it is best practice currently and the safest practice to:-

It is important for employers to take comfort from the fact that a disciplinary hearing in the WRC or the Labour Court is not there for the WRC or the Labour Court to determine whether the decision of the employer was correct or not. Case law such as the case of Looney and Co Limited -v- Looney UD843/1984 has been quoted often, namely that it is not for the Tribunal to seek to establish the guilt or innocence of the Claimant nor is it for the Tribunal to indicate or consider whether the Tribunal in the employer’s position would have acted as the employer did in the investigation or concluded as his did or decided as he did as to what would substitute a Tribunal’s mind for that of the employer. The responsibility of the Tribunal is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up against the standard against which the employer’s actions and decisions be judged. Effectively, this means that in our view once the employer applies fair procedures the employer is effectively 90% there to successfully defend any unfair dismissal case. Of course there is the issue then of the sanction and the case of Bank of Ireland and Reilly 26ILR 229 is a decision of Mr Justice Noonan which is helpful that in assessing the reasonableness of the employer’s conduct in relation to the dismissal he pointed out that it seemed that such an assessment must have regard to the surrounding circumstances including the impact on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response. That, we will take it, goes to the issue of, effectively, the penalty as opposed to the procedures. Where an employer has applied clear, precise and fair procedures in line with best practice it is extremely difficult for an employee to win an unfair dismissal case.

Again, that is simply our view.

The issue as to what exactly are fair procedures and particularly the issues of representation and the right to cross examination is an issue where hopefully the Labour Court will give a definitive judgement at the first available opportunity. The Labour Court’s decision will be beneficial to both, employers, employees, the representatives of both and AO’s in setting of what the law in this area is.

We want to be very clear. We are not saying that the Labour Court has failed to do this. In fact the contrary is the position. The Labour Court has been very clear on the issue of fair procedures and what this entails. However, the WRC and there is no criticism of the AO’s in these particular cases as we could have picked other cases and mention them instead. We believe that a further clear and definitive from the Labour Court which to an extent is going to be restating other decisions of the Court are set out and that then all Adjudication Officer’s will follow that ruling so that this issue of diversity as to what fair procedures are is avoided. The current uncertainty caused by the WRC is neither fair to employers, employees or their representatives. The great advantage of the Labour Court is that their decisions are binding on the WRC and to an extent it is unsatisfactory that existing decisions of the Labour Court are not being followed.