We have in the past stressed the importance of providing a fair hearing to employees when it comes to disciplinary matters, and most importantly where dismissal is a potential outcome.
The cases of Daly -v- Somers (UD 495/2005) and Wernstrom -v- Galway Aviation Services (UD 1460/2004) are prime examples of the reasons for affording these procedures, as employees were awarded €11,310 and €30,000 respectively as they were not afforded the right to defend themselves.
In a recent case published by the EAT, Employer -v- Employee (UD 441/2011), the Tribunal has once again highlighted the importance of fair procedures when dealing with these issues. The employee in this case was dismissed for Gross Misconduct following their comments that "the organisation was being run by criminals and drug dealers".
The employee was working in the organisation since 2004, and it provides support and assistance to survivors of the former industrial schools in Ireland. Following a breakdown in relations between those running the organisation and some member sin Cork a new executive committee was elected, with the employee being the chairman. This was perceived as being a take over attempt and the employee was suspended on pay pending an investigation.
There were now two executive committees and the legitimacy of the organisation was being questioned. An agreement to put a new structure in place was then implemented which the company believe the employee signed off on. However the employee disputed this and said it was never his intention to step aside. The Company then sought to elect delegates which the employee applied for, however was told that he could not be an employee and a delegate as this would be conflict of interest. At a board meeting in July 2010 which looked at electing members to the board of Directors members who were not delegates were asked to leave.
The Company maintained that the employee (and their supporters) conduct was 'abusive, intimidating and threatening' and that they 'barged into the meeting' claiming it was illegal and made allegations of criminal conduct against those running the organisation. The Gardai were called, this was denied by the employee and it was claimed the Gardai were called by the hotel management after a witness alleged he was assaulted.
In August 2010 the employee received a letter on behalf of the board fo directors informing him that he was being dismissed for Gross Misconduct, as he had failed to conduct himself in a proper manner and his actions were a breach of trust and respect to the organisation.
Determination
The Tribunal determined that the company had failed to follow fair procedures as the employee was not given an opportunity to respond to the allegation of gross misconduct and that "fair procedures at a minimum, require that the claimant knows the charge against him and tha the be given an opportunity to answer that charge and put forward any defence he may have".
"Some may argue that a hearing or a right of reply would make no difference to the final decision. this proposition was emphatically rejected in Glover v BLN Ltd. [1973] IR 388 by Walsh J, where he stated; the obligation to give a fair hearing to the guilty is just as great as the obligation to give a fair hearing to the innocent. The Tribunal is further of the opinion that the decision to dismiss may well have been made in haste."
The employee was awarded €10,000 however it was noted that contributed significantly to this by their comments that "the organisation was being run by criminals and drug dealers".
Impact for Employers
This case again illustrates the importance of fair procedures for employers and that even where an employees actions amount to gross misconduct there is the obligation for a fair hearing.
