A very important decision came before the courts recently regarding the question of whether an employee, who is the subject of a disciplinary process, is entitled to legal representation at an internal hearing conducted by the employer or not. 

Recently in the case of McKelvey v Irish Rail the Supreme Court brought clarity to the issue over whether an employee is or is not entitled to legal representation at a disciplinary hearing.  

In this case in the High Court it was stated that: 

“It is ordered that the Defendant be restrained from commencing with the disciplinary hearing in respect of the said Plaintiff unless his entitlement to be legally represented is granted”.  The Defendant was the employer.

The High Court decision was then appealed to the Court of Appeal. 

The employee then sought leave to appeal to the Supreme Court which was granted.  

The Supreme Court has now concluded that representation for the employee of an experienced trade union official would have been sufficient to meet the needs of a fair process. 

The Judge stated: 

‘’I am also satisfied that the observation to be found in the judgment in Burns to the effect that legal representation will only be required as a matter of fairness in exceptional cases provides overall guidance to the proper approach’’.  

Therefore, the right to have legal representation at disciplinary meetings only arises in exceptional cases.  

If one is dismissed it is important to know the short timeframes to take a case detailed below.

S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000

Disciplinary meetings / procedures should be dealt with fairly.

This code of practice should be followed by employers and employees alike seen here.

Legal Action Process 

If you feel you have been dismissed unlawfully, you can proceed to make a complaint to the Workplace Relations Commission.

The complaint form is listed on the said commissions website. We are biased maybe, but we would suggest a person sits down with a solicitor before completion of this application form, as it can be quite detailed and you must prepare a statement of events as part of the application form.

This is the first document describing the facts an Adjudicator will see. 

The matter can proceed to Mediation and/or Adjudication in the workplace relations. Cases of this nature generally proceed relatively quickly after they are submitted to the Workplace Relations Commission. 

There are very strict timelines in terms of commencing unfair / constructive dismissal cases, and any cases brought outside the requisite time period can be what is termed statute barred.

You must submit your claim to the Workplace Relations Commission within 6 months of the date of dismissal.  

Employment Law Articles