Every employer will have to consider dismissing an employee at some stage, so it’s useful to keep an eye on unfair dismissal decisions from the WRC and Labour Court. This can provide key insights and guidance as to what’s expected of an employer during the process – and of course, Peninsula is here with help when you need it.
Procedural flaws
Employers must always ensure that they adopt a fair process in respect of an employee's dismissal. Staff have a right to a fair hearing, and courts insist that employers comply with their obligations in this regard. The WRC have often found that an employee deserved to be dismissed due to their behaviour, but that the dismissal was unfair due to a flawed dismissal procedure.
Here are a few case examples to help you understand how this can be applied...
Employee wins €18,000 award after dismissal for theft
A good example of this can be seen in the recent EAT decision in McNally -v- Tesco Ireland (UD80/2015). Mr McNally was a security guard for Tesco. The company operated an Honesty Policy and Staff Purchase policy. The security guard was dismissed after he had “removed an item of stock from the respondent’s premises without authorisation and without having paid for it.”
The EAT assessed the reasonableness of the dismissal and concluded that, “Given the claimant’s level of seniority; given his role as security manager and the trust that that entails; and given that there was no culture of bringing unpaid-for goods home, the court is satisfied that the decision to dismiss was a reasonable one.”
However, even though the EAT felt that the decision to dismiss was reasonable, they still found the dismissal unfair due to “significant procedural unfairness”, particularly the fact that there was a seven-month delay in arranging for the employee’s appeal hearing. The employee was awarded €18,000.
Employee wins €8,000 award after dismissal for telling workers to “slow down”
The decision of the EAT in Buckley -v- Dunnes Stores (UD1064/2014) will no doubt cause some consternation among employers.
The employer in this case decided to dismiss the employee after they became aware that she was telling a co-worker “that he had to slow down and that this would create more work. She then had a text sent to him through MV again telling him to slow down. Extra hours would lead to extra pay for him and others. He would make more money if he ‘dragged himself around’…”
Obviously, this type of behaviour would greatly upset an employer – after all, employees are employed to carry out their work to the best of their ability. If it were the case that an employee was not only deliberately working slowly, but also encouraging other employees to do the same - and the reason for this was to generate more paid work - then many employers would consider dismissal.
However, the EAT found that this was an unfair dismissal and, in doing so, deemed certain aspects of the dismissal process to be unfair. They noted in particular that “the claimant had not had a witness or was unaccompanied during some meetings.” In addition to not being allowed a representative, the EAT noted that the disciplinary hearing was held the same day that the investigation process was completed and that the employee only received key evidence that same day. Ultimately, the EAT felt that an €8,000 award was just and equitable in the circumstances.
Dismissal too severe
Where an employee engages in misconduct, employers must always consider the surrounding circumstances. Quite often, an employee will commit an act that at first glance would be deemed gross misconduct, warranting dismissal, but the surrounding circumstances/explanations may lead a WRC panel to conclude that dismissal was too severe and unfair.
Employee wins €5,400 and is reinstated after dismissal for “horseplay”
A good of example of this can be seen in Last -v- Suir Pharma Ireland Ltd (UD343/2015). It’s unclear from the EAT’s written decision as to what exactly occurred, but it’s outlined that “[t]he claimant was dismissed as a result of what could most fairly be characterised as a horseplay incident where the claimant had a reflex action to being struck with a towel in the groin area.”
It therefore seems very likely that the employee here was struck in the groin with a towel by a colleague (it seems from the decision that this was more in jest than anything) and that the employee reacted in a way that could have been construed as dangerous, or a possible serious breach of health & safety rules.
Where employees engage in dangerous behaviour or breach health & safety rules, this could possibly warrant dismissal. However, the EAT noted here that “a level of horseplay was tolerated in the workplace” and that the workplace could be described as “high spirits”. The EAT ultimately concluded that the dismissal was unfair as a result.
The basic point here is that you can’t reasonably allow behaviour to occur by employees in general, and then dismiss an employee for engaging in that behaviour. If employees are treated inconsistently, then it’s very likely that the dismissal will be deemed unfair.
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