If an employee is on a final written warning and breach regulations, is it automatic dismissal? Are there any alternatives to dismissal in this scenario?
A recent case in the EAT looked at this question and gave the Tribunal's opinion as to what an employer can do in such a situation.
In the case of Employer -v- Employee UD1410/2011 the employee was working as a service provider at a global package delivery company. Random security audits are carried out and the employee failed one such audit by not keeping his vehicle secure, as the passenger door and bulk head door had been left open, as a result the employee received a final written warning which they did not appeal. Later in the same month the employee failed another random security audit where the passenger door was again unlocked. The employee was invited to a disciplinary hearing where the decision was made to dismiss.
The employee appealed the decision and the decision was upheld as no mechanical fault was found which prevented the vehicle from locking, as the employee had claimed that he had pressed the fob to lock the vehicle so could not understand it being unsecured.
In their determination the Tribunal argued that the seriousness of the situation was such that as an international package delivery company security must be of the highest order to secure its reputation and client base. They also commented ont he fact that no mechanical fault was found with the doors and as such human error was relied upon by the company as the reason for the door being unlocked. The company when carrying out the disciplinary hearing saw the employee was on a final warning and as such had no option but to dismiss in this case. The tribunal also mentioned that it is clear the Company had no issue with the employee and felt bound to terminate the employment simply because the letter of warning was on file. "In the letter of appeal the respondent (employee in this case) had looked for clemency on the issue of the penalty. This does not appear to have been given due consideration and despite the fact that the handbook specifically provides for demotion, transfer and suspension without pay these forms of penalty were not considered."
"the Tribunal must satisfy itself that the appellant (Company) has discharged its onus to act reasonably and fairly in all the circumstances. This becomes all the more acute where a man is to lose his livelihood. The Tribunal is not satisfied that the appellant has discharged its onus. ..the penalty far outweighed any wrongdoing committed."
The Tribunal awarded €15,000 to the employee in this case.
Impact for Employers
Employers should be aware that a final written warning does not automatically lead to a dismissal, other avenues should be explored if the situation is appropriate. There are a range of alternatives to dismissal that an employer can utilise such as extending a final warning, demotion, transfer to a lower status, or suspension without pay. All options should be explored and only where it is deemed to be necessary should an employer dismiss, as in the above mentioned case the Tribunal has cited where a man is to lose his livelihood all options should be explored.
it is also crucial that the employer mention in their disciplinary procedures what these options may be as failure to do so could lead to a breach by the employer in certain circumstances.
