It is critical for employers to follow fair procedures and the principles of natural justice during all dismissal processes. In cases of gross misconduct, employers will understandably feel entitled to summarily dismiss a misbehaving employee. Employers are better advised to exercise discretion. As demonstrated in a recent case before the Workplace Relations Commission (WRC), a summary dismissal that fails to adhere to fair procedures, can turn the tables in favour of the dismissed employee. Store Manager v Restaurant Chain In a recently reported case involving a restaurant chain, the WRC found that despite the employer having reasonable grounds for dismissing the employee, the application of a flawed dismissal process left the Adjudication Officer (AO) with no option but to order the employer to pay €6,500 compensation to the dismissed employee. Background The case involved a restaurant chain that dismissed one of its store managers for gross misconduct on foot of a sexual harassment allegation. In February 2017, the restaurant chain received a complaint from an employee against the store manager. The employee alleged that she ended a relationship with the store manager when she discovered he was married and had a family based outside the country. The employee alleged that the store manager had been arriving at her home unannounced and threatening to cut her hours of work. Upon receipt of the complaint the restaurant chain appointed an external HR professional to investigate the issue. Investigation During the investigation, further allegations of sexual harassment were made against the store manager by a number of employees. It was found that during the course of his employment the store manager had used his seniority to extort sexual favours from his staff. The store manager himself admitted to the investigator that he offered accommodation to employees in order to have sex with them. The store manager was also accused of inappropriate conduct including unwelcome advances and accusations of non-verbal conduct of a sexual nature. Gross misconduct Under the restaurant chain’s company policy, sexual harassment constituted an act of gross misconduct. Following the conclusion of the investigation, the store manager was dismissed in line with the company policy which stated that “when an employee is involved in gross misconduct, the company may determine that the employee should be dismissed without reference to any of the stages of the disciplinary process”. The restaurant chain considered that the store manager’s behaviour had so fundamentally damaged the employment relationship that he had put the health and safety of the staff he managed at risk. The store manager was given the right to appeal which he did not take up. WRC adjudication Following a review of the evidence submitted, the AO agreed that the store manager’s conduct amounted to grounds for a fair dismissal but found that the restaurant chain’s failure to follow fair procedures prior to the dismissal rendered the process “hopelessly flawed”. The following issues were cited by the AO as some of the key omissions in finding the dismissal to be unfair: -
- the restaurant chain did not outline the precise allegations of sexual harassment to the store manager
- the restaurant chain did not provide the store manager with witness statements
- the restaurant chain did not inform the store manager of the seriousness of the situation and the potential sanction of dismissal
- the store manager was not offered the right to defend himself and the right of representation
- following the investigation meeting the restaurant chain did not escalate the issue to a disciplinary hearing
- the restaurant chain did not provide the manager with the name of the person to address an appeal to
- the restaurant chain did not allow the manager to cross-examine his accusers.
The AO concluded that the principles of natural justice had not been followed and that compensation was the appropriate remedy. Lessons learned The employer undoubtedly found the decision of the WRC difficult to stomach. The decision nevertheless highlights the importance of applying fair procedures in cases of gross misconduct. The following guidelines will help employers ensure that fair procedures are applied when dealing with dismissals involving gross misconduct: -
- hold a preliminary investigation with the employee in question
- following the investigation, suspend the employee on full pay pending the outcome of the disciplinary process
- formally invite the employee to the disciplinary hearing
- make the employee aware that they are entitled to be represented during the disciplinary process
- take reasonable measures to accommodate the employee where necessary during the disciplinary process
- provide the employee with a right of appeal and the details of the person to address the appeal to.
To find out more about how to safeguard your business against unfair dismissal claims please call our 24-hour advice line on 0818 923 923
