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Why do some employers insist on giving away money at the Employment Appeals Tribunal (EAT) by either not having or failing to follow proper procedures when disciplining employees?? Here at Resolve HR we have noticed a belief among some employers that Policies and Procedures are a hindrance when disciplining employees, particularly when a case appears to be cut and dried. So in this weeks Blog we have decided to include the following brief case summaries selected from some of the EAT's decisions over the last 18 months to illustrate the potential costs of this assumption!!

McNerney v Board of Management, St. Patrick's National School (UD1156/2007)
The claimant worked as a teacher in a national school for 31 years before being appointed principal in 1996. From 2003 onwards the working relationship between the claimant and the Board of Management (the "employer") was strained. Within a period of a year three separate formal complaints were made about the claimant, one of these ended up with the claimant receiving a final warning. In addition to these complaints three teachers brought complaints of bullying/harassment against the claimant. After the intervention of a mediator failed the employer investigated the matter and found the bullying/harassment of the three teachers constituted misconduct. On foot of the previous warning the claimant was dismissed. In her claim to the EAT the claimant submitted that the process used to determine her dismissal was not a fair one as she had no right of appeal. In addition the claimant argued that the school's disciplinary procedures were not complied with as the claimant was not entitled to cross-examine complainants, time limits were not followed and the employer did not properly consider alternatives to dismissal. The EAT found that despite its best efforts the process the employer used was fundamentally flawed, it also found that the initial complaints against the claimant were not of a sufficient seriousness to warrant a final warning. The Tribunal found that the dismissal was unfair and awarded the claimant €55,000 under the Unfair Dismissal Acts, 1977 to 2007.

Maliuk v. Shellfish De La Mer Limited (UD211/2007)
In May 2006 the claimant received a verbal warning regarding his performance. There was no disciplinary hearing and when he asked if he could appeal such he was told he could not do so. He was subsequently not made aware of a number of other disputed warnings from September and October 2006. On 10^th November 2006 he was suspended with pay pending the outcome of an investigation after a meeting with the Respondent. He was then given a final written warning and was not informed of a right of appeal against such and he did not seek to appeal the warning. He was then notified on the 16th and 21st of November of two complaints made by two female employees even though the complaints had been made in October and no reference to such was made in the meeting of the 10^th of November. The Claimant was again suspended with pay and was dismissed by way of letter on the 28^th of November and was not informed of a right of appeal against the dismissal. The EAT found that fair procedures "were not invoked by the Respondent" and the dismissal was unfair. However the EAT found that "the Claimant contributed in some measure to his dismissal" and as a result reduced his award to €18,000 and also awarded him two weeks pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2001.

Kiernan v. Mircan Trading Limited T/A Dunphy's Supervalu (UD1233/2006)
The Claimant worked part time in the supermarket and his duties included opening the supermarket, turning off the alarm and checking deliveries. He took a property supplement from a newspaper left over from the day before which was to be recycled. There was no bar code on the property supplement and therefore it had no monetary value. The following day he was called into the office by the owner and informed that he was to be suspended without pay and that the matter was to be investigated. He then attended a meeting with his brother in law and the owner a few days later and was informed that he was suspended with pay and a further decision would be made that day. He was subsequently informed by the owner that he was being given a written warning and that his suspension was being lifted. The Claimant returned to work but felt aggrieved as he felt criminalised and he had no one to appeal the matter too. He left work one month later. The EAT found that the staff handbook was unclear regarding the disciplinary appeal process. The owner had claimed at the EAT hearing that a magazine had also been taken and this point had not been put to the employee. As there was "no evidence before the Tribunal of anything other than a newspaper being taken" and the fact that the employer accepted that "if the case rested only upon a newspaper being taken he would not have issued a final warning" there was a constructive dismissal. The EAT took into account the Claimant's failure to mitigate his losses and awarded €9,000 in respect of the constructive dismissal.

Pearce v. David Flynn Limited (UD833/2006)
The Claimant worked as a general operative and grounds-man for the Respondent builders. His site manager learned about his conviction for driving away without paying from a petrol station on ten occasions by reading about it in a newspaper. The firm were carrying out snagging work at the petrol station in question. The Claimant confirmed the conviction when questioned about it. A number of senior managers had read the report and the MD was informed. The MD discussed the matter with human resources and the Claimant's site manager and both stated that they had lost trust in the Claimant. No formal investigation took place. The MD decided to dismiss the Claimant and a letter was prepared and was read to the Claimant by his site manager. He tried to speak to the MD who picked up his phone on a number of occasions but did not speak. The EAT found that given the nature of the offences that the Respondent "had substantial grounds for dismissing the Claimant". However the managing director was found to have acted unfairly "in failing and refusing to speak to the Claimant" and the employee ought to have been "afforded the opportunity to put any mitigating circumstances before the Respondent" for consideration. The dismissal was procedurally unfair and taking the Claimant's contribution to his loss into account an award of €6,000 was made.

Three Cases UD 257/258/259/2007

In February 2006 the management of a Waterford carpet factory noticed that production had dropped despite an increase in the amount of overtime being paid, and installed CCTV cameras to monitor the employees. This revealed wide-scale clocking irregularities, including employees clocking colleagues out, sometimes hours after the colleague in question had left the factory. A meeting was arranged with three employees and their union at which the employees offered no explanation and did not contest their wrongdoing. In fact they said that it was custom and practice that staff clocked each other out, it was also claimed that it was common practice for employees to play cards or go to sleep in one of the sheds when a job was completed, before clocking out at the normal time. The union accepted that the irregularities had occurred and pleaded for leniency however management maintained that the employees' actions constituted gross misconduct and theft, and that this justified their immediate dismissal. The EAT found that the respondent (the factory) had failed to rebut the employees arguments regarding the "custom and practice" of the clocking irregularities and that the men were unfairly dismissed as there had been a lack of procedures to deal with dismissals. The three men were awarded €13,554, €24,863 and €24,445 respectively, although the EAT did indicate that these awards took into account the men's own contribution to their dismissal. 

While the EAT's approach has softened recently to reflect the current economic climate, the last case in particular highlights an employers responsibility to behave in a fair and reasonable manner to its employees at all times regardless of the circumstances. For more information on disciplinary procedures check out http://www.resolvehr.ie/index.php?page=disciplinary-procedures or please contact us for more advice.