A recent case from the EAT has highlighted the importance of a Final Written Warning in respect of the Company's disciplinary procedures. The Tribunal noted that the final warning was just that, it was the last chance saloon for the employee and no future infractions will be tolerated. "It is not merely a step in the disciplinary process that must be either passed or skipped."
The case highlighted is that of Molloy v Wincanton Ltd. UD197 [2011] where the employee was a driver for over 10 years and was dismissed following a number of warnings.
Background
The employee was previously issued a warning for 12 months in January 2009, for entering an oil terminal without 'carding-in', which on appeal was reduced to 6 months. In August 2009 he was issued with a further final written warning for 12 months, for colliding with a low wall and bollards damaging the vehicle, which on appeal was commuted to a written warning.
In August 2010 further issues occurred whereby on 17th August he damaged the wing mirror of the Company Vehicle when trying to pass a fallen tree on a road, and on the 18th August he was involved in an incident of fuel contamination, when he did not follow oversight procedures and have a person supervise/oversee the delivery of fuel which resulted in fuel being put in the incorrect tanks.
The Company determined that the incidents were to be treated individually and that issue on the 17th August was worthy of a final written warning and the incident on the 18th August was worthy of dismissal.
Outcome
The Tribunal outlined their belief that had the first issue (17th August) not occurred the employee would not have been dismissed for the incident on the 18th August, what caused him to be dismissed was that it was considered that the first incident had moved him to a final written warning and the second incident pushed him to dismissal. "This is a misconstruction of the purpose of a final written warning. it is just that, a final warning. Its is not merely a step in the disciplinary process that must be either passed or skipped. That it is in writing is to mark its formality and the serious intention of the employer. But it must be a warning in respect of future conduct. its purpose is to let the employee know that he is int he last chance saloon and no future infractions will be tolerated. However, essential to it is the concept that the employee has an opportunity to reform his conduct or performance and pull himself back from the brink. The claimant was not afforded such an opportunity." The employee was judged to have been unfairly dismissed and was awarded €50,000.
Impact
this case demonstrates that an employer which wishes to bring an employee through the disciplinary process must give due time and consideration in between warnings, the employee should be allowed time to improve and warnings should not be issued in such close proximity. The Tribunal did go on to mention that an employer can look at the cumulative effect of several disciplinary infractions and consider that as a whole they require a penalty of greater severity than had they occurred individually. However when issuing warnings, especially final written warnings, it is important to be seen to have given time for the employee to improve and "pull themselves back from the brink".
