When an employer has made the ultimate decision to terminate the employment of the employee, they should implement procedural fairness into the process prior to the termination.

Every employee will know what fairness is and isn’t. They will feel it.

Questions for employees to ask themselves when they receive a letter indicating the employer has a serious issue regarding allegedly grave conduct by the employee:

• Did the employer specifically state in clear simple language what the complaint is ? The keyword is detail. A bald statement impervious to obtaining a full understanding of what the complaint is with detail is unfair, in our opinion. If one was to transfer it to a court setting, the least the defendant would want to know is what is the detail of the charge against him/her is –  ie the when, the where, and who was there allegedly etc.
• Did the employer ring the employee or write to the employee noting a serious issue has arisen and an investigation is due to take place?.,
• Did the employer tell the employee of the specific breaches of conduct and company policies ?.
• Who are the investigators  ? Are they impartial ?.
• Did the employee get the opportunity to defend himself/herself ?.
• Was he/she given a right to be represented at the disciplinary meeting ?.
• Is there fairness in the investigation process ?.
• Was the disciplinary process run fairly ?.
• Was there an appeal mechanism etc. ?.

Once a case comes before an Adjudicator, each party must give evidence regarding the investigation-disciplinary procedures that took place. An employer should follow their own published company investigation-disciplinary procedures, but commonly this does not happen.

A useful statement of the legal framework in these cases was set out in JVC Europe Ltd. -v- Panisi [2011] IEHC279, the High Court where it was stated “The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify dismissal”.

In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required in the context of Section 6 of the Unfair Dismissal’s Act 1977 as follows:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.

Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.

An employee has an implied contractual and constitutional right to fair procedures as grounded in common-law, Irish caselaw e.g. Re: Haughey (1971) IR217 and statute i.e. S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures).

Where a question of a dismissal being unfair is a live issue, in its judgement in Frizelle v New Ross Credit Union Ltd. (1997) IEHC 137, the High Court provided a list of “premises” which must be established to support an employer’s decision to terminate employment for misconduct, being as follows;

“1. The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

2. Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5.The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.

What constitutes Gross Misconduct ?

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal.

In Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) it states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct.

We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category.

If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

Gross Misconduct meaning ?

We have answered this in the paragraphs above.

Cleary & Co. Solicitors, Litigation Law Firm 

Kieran Cleary and Roger Cleary Employment Law Solicitors can help with questions you may have regarding employment law matters and our numbers are (01) 546 1121 or  (052) 612 1999 or our email address is info@clearysolicitors.com

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be obtained from a solicitor prior to relying on anything in this article.

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.