- The tribunal reinstates the right to address performance and conduct issues provided appropriate procedure is followed. The fact an employee contributes to their dismissal does not remove the right to fair procedure.
- The company disciplinary process should be made available to all employees especially during a disciplinary process
- Employees should be formally invited to disciplinary hearings by way of letter giving appropriate notice to prepare a defence.
- The allegations should be clearly set out in the invite letter along with all supporting evidence
- The employee should be entitled to union representation.
Back ground:
The employee in question had received a verbal warning as a result of refusing to carry out a management instruction, namely to attend a service at a hotel in Wexford. Further to this, a meeting was held to discuss performance issues. It was agreed that his performance needed to improve going forward.
Following this meeting, the employee was given a written warning as a result of his failure to carry out his duties to the required standard which resulted in associated costs for the company.
The MD met with the respondent to again discuss his performance. The MD showed the employee a letter outlining incidents concerning the respondent’s performance and discussed these with him. After a while the employee began to mimic him and referred to his colleagues as ‘minions’. The meeting was discontinued and the employee was given a final written warning.
Further to this there was no improvement regarding his performance which led to the MD making a call to the employee requesting him to attend a meeting, at which point the employee sought clarification regarding the intent of the meeting. The MD confirmed it was a disciplinary hearing and the employee proceeded to request representation. The MD dismissed the request by noting the company did not engage with trade union members and offered a fellow colleague. Further to the meeting a dismissal letter was posted to the employee which included three issues that had not been discussed at the meeting.
Determination:
In the determination it was noted that the employee had been given a number of warnings but had never been advised that he was being taken through the formal disciplinary process, the respondent was not advised what the conduct issues were in advance of the meetings. The tribunal also pointed to a more serious and fundamental breach which is the absence of a disciplinary process or communication of same.
The tribunal further outlined that it was not up to the tribunal to determine if there was any merit in the concerns raised by the employer and made it clear that the issues should have been addressed with the employee in a manner that would facilitate improvement.
The Tribunal was satisfied that the respondent was unfairly dismissed within the meaning of the Unfair Dismissals Acts, 1977 to 2007 and awarded 25.000.00
Learning points:
