Barry Crushell

Very often, when an employer believes an employee may be guilty of some form of misconduct, there can be an immediate rush to judgment, which may prejudice any eventual outcome.

If a subsequent determination is one of dismissal, and correct processes and procedures prior to dismissal have not been followed, it is more likely that, should the employee bring a complaint under section 8 of the Unfair Dismissal Act 1977, the employer will face a daunting task in defending the reasonableness of their actions.

The purpose of an independent investigation, disciplinary process, and right of appeal is to ensure procedural fairness prior to any sanction being administered. These protocols are designed to afford all parties, an opportunity, to present and question any available evidence, so that a fully informed decision, might be taken, at the end of any procedure.

A number of recent cases highlight the burden placed on an employer, in respect of their obligations to afford an employee an independent investigation, disciplinary process, and right to appeal.

Luca Rosati v R & M Restaurant Limited (ADJ-00051275)

In the case of Luca Rosati v R & M Restaurant Limited (ADJ-00051275), a dispute arose between a chef and the manager, which resulted in the chef walking offsite. The adjudication officer was presented with evidence of text messages prior to the incident, between the parties, which demonstrated a very positive working relationship. The fact of the dismissal was in contention, with the chef arguing that he had been told to leave the premises and never come back, while the restaurant, Rosa Madre, countered that he had voluntarily resigned.

The adjudication officer noted the obligations of an employer in such a scenario, commenting:

The failure of Rosa Madre to carry out any investigatory process following the incident was fatal to their case.

Muhammad Kashif v Aldi Stores Limited (Ireland) (ADJ-00045886)

In the case of Muhammad Kashif v Aldi Stores Limited (Ireland) (ADJ-00045886), Aldi had dismissed Mr Kashif following receipt of the information that he had been convicted of a sexual assault of a former colleague.

Aldi submitted that they relied on clause 9 of the contract of employment, which provided for summary termination of employment in cases of:

Aldi also operated a Rules of Conduct as incorporated into the staff handbook as a listing of examples of misconduct: “If serious enough, may amount to gross misconduct warranting dismissal without notice.”

Aldi relied on a number of cases in support of their decision to terminate the employment of Mr Kashif.

Aldi argued that, pursuant to Byrne v Marks and Spencer (Irl) Ltd UD 826/2013, a zero-tolerance policy on theft would have been well-known to the complainant. The dismissal was deemed harsh, but not unfair. Aldi argued that Mr Kashif was aware of a similar expectation of Aldi staff.

In a similar vein, Aldi relied on A Complainant v A Respondent (ADJ0007474), in which an employee had been dismissed following allegations of criminal conduct, on foot of a zero-tolerance policy. 

Aldi also highlighted the decision in Crowe v An Post [2016] ELR 93, where the EAT held that a dismissal in response to a conviction in relation to extracurricular activity was found fair as “a sufficient connection between the crime committed and the employers work, which rendered the employee unsuitable or that would be capable of damaging the employers reputation”.

Aldi placed further reliance on A Former Employee v A Financial Services Provider (ADJ00029687) where a long-serving employee had pleaded guilty to fraudulently withdrawing €40,000 from a credit union account of an elderly family friend. The dismissal was found to be fair as given the nature of the business, trust and confidence in employees at every level was paramount.

In calling on the fundamental requirements of fair procedures, Aldi cited Kilsaran Concrete v Vitalie Vet (UDD1611) at the Labour Court:

    1. Employee placed on notice of all allegations at the outset of the process;

    2. Strict adherences to a Published Disciplinary hearing; and

    3. In the event of an allegation being upheld, “any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.”

Mr Kashif relied on a number of cases in support of his claim. He noted, per Hennessy v Read and Write Shop Ltd (UD 192/1978), that a determination could only be made following an extensive enquiry on the part of an employer. Counsel went on to gauge summary dismissal as “the nuclear weapon of the employer’s arsenal of disciplinary sanctions”.

Counsel for Mr Kashif also relied upon Abdullah v Tesco Ireland PLC (UD 1034/2014), where the EAT determined that a reasonable employer is required to show that he/she had a genuine belief, based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate.

Mr Kashif also relied on the five-point test in Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, highlighting that, on point five, the actual decision as to whether a dismissal should follow should be a decision proportionate to the gravity of the complaint and the gravity and effect of dismissal on the employee.

He further relied on Crowe v An Post [2016] ELR 93 in respect of how an adjudication officer should approach a claim for unfair dismissal, where the dismissal arose from criminal conduct outside of work:

Stressing the necessity of establishing a connection between misconduct and the company’s operational requirements required a nexus between the employees’ conduct and the employer’s business.

In analysis of the facts in Brady v An Post (UD 463/1991), the absence of a nexus “proved fatal”. The EAT found that the presence of a conviction for sexual assault during the complainant’s tenure as a cleaner did not make him unacceptable to others or that the employer’s reputation had been adversely affected “as he was not in a position of special trust”.

At the conclusion of the hearing, counsel concluded that Mr Kashif had been unfairly dismissed as there had been no full inquiry into the offence that led to his dismissal.

He contended that the offence was not connected to his employment, nor did it bring disrepute or reputational damage to the respondent.

Mr Kashif had informed his employer of his conviction and he understood that he was being supported by Aldi. 

Mr Kashif argued that the decision to dismiss was disproportionate and unreasonable, which caused him a combination of financial loss and reputational damage.

A careful reading of the Company Disciplinary procedure on the delegated authority to dismiss, the adjudication officer highlighted that:

This demonstrates a heavy emphasis on dismissal in the case of gross misconduct. However, Mr Kashif was dismissed by a Locum Area Manager and not the casted Area Manager in this case, who appears to have been a note taker.

The adjudication officer went on to cite the case of Scislowski v Limerick Strand Hotel (UD16/2016), in which it was noted that it is better practice for an employer to ensure that the disciplinary hearing is conducted by someone other than the person who conducted the investigation the failure to do so does not necessarily render the procedures unfair. 

The adjudication officer went on to note that they would have preferred to see an Investigator distinct from a Disciplinarian but accepted that it does not render the dismissal unfair.

The facts, as the adjudication officer found them, were not conclusive proof of substantial grounds for dismissal, and therefore it was found that, by omission, Aldi had veered outside the band of reasonableness for a reasonable employer faced with the cumulative facts of what occurred.

The adjudication officer determined that the dismissal was disproportionate and that the complainant was unfairly dismissed.

Poliane Fernandes Lima v Elland Distributors Limited Born Clothing (ADJ-00049872)

In the case of Poliane Fernandes Lima v Elland Distributors Limited Born Clothing (ADJ-00049872), Ms Lima was dismissed having informed her employer that her employee permit was about to expire. Apparently, Elland Distributors obtained advice that it would be a regulatory breach for them to allow Ms Lima to remain in employment if she did not have a valid employee permit.

The adjudication officer noted that they were satisfied that Ms Lima did meet the criteria set out by the Department of Justice in that she had applied to renew her visa well before it expired, and she informed Elland Distributors about that on the date of her application.

The adjudication officer was also satisfied that Ellen Distributors acted in the absence of any procedures whatsoever and, acting on incorrect information, dismissed Ms Lima and that that dismissal was unfair.

The information in relation to the visa is on the Department website and is readily available to anyone who looks for it, the adjudication officer noted. Even that menial task was not carried out by the Ellen Distributors prior to terminating Ms Lima’s employment.

In all the circumstances, the adjudication officer found that the complaint was well-founded.

Conclusion

As stated at the introduction, any rush to judgment on the part of an employer, without obtaining all the necessary facts, prior to making a determination, may prejudice their ability to defend any future complaints seeking adjudication under section 8 of the Unfair Dismissals Act 1977.

By carrying out a separate investigation and disciplinary process and affording an employee a right of appeal, an employer can be sure that any decision they take is made with the benefit of all information available, having fully consulted with the employee concerned.

Furthermore, the benefit of an independent process across three stages means that any failure at one stage can potentially be remedied by another.

Adjudication officers rarely expect perfection when it comes to any investigation and disciplinary process. However, they are expectant that such a procedure will be independent, impartial, and informative. While often a burdensome task, a failure to properly execute such a process may be more costly for an employer in the long term.

• Barry Crushell is principal solicitor at employment law specialist firm Crushell & Co.