What happens when a workplace issue spills over into criminal matters? Many employers have faced the difficulty of an employee engaging in activities (either in work or outside working hours) which can result in criminal charges being pursued. We have seen yesterday where former Fianna Fail Junior Minister Ivor Callely has pleaded guilty to making a false mobile phone expenses claim at Dublin Circuit Criminal Court. These were actions which took place in the workplace (Leinster House) and are being taken through the criminal courts.
Employers need to be aware of a number of issues associated with these types of incidents, and must be careful not to jump the gun or prejudice any further investigations.
Involving the Gardai in such issues
If you involve the Gardai or notify them of a potential workplace issue you may have to suspend your own investigation until the Gardai investigation is complete, the rationale being how can you justify your decision to dismiss an employee when the Gardaí subsequently acquit them of the crime? This was looked at in Kelly -v- CIE (UD 28/1978) & Brock -v- An Post (UD 57/1987)
It can also pose a significant problem when dealing with criminal matters in a workplace forum, as if an employee is charged with a criminal offence then they may not engage in the disciplinary process given their legal right to not say anything self-incriminating (Cousins -v- Brookes Thomas Ltd (UD 45/1988)) which in itself can be problematic in reaching a conclusion to dismiss, and in keeping with Murphy -v- Berger Paints (UD 818/1985) you cannot postpone an Unfair Dismissal hearing to await a judgement in a Criminal hearing. This means that if an employer decides to inform the Gardai of a crime, or decides to take action on someones employment following notification from the Gardai of a crime then should the case be referred to Tribunal they will only base it on the facts of the dismissal and will not wait for a Criminal case to reach conclusion before making a determination.
Potential Frustration of Contract
If an employee is sentenced to a prison term there is always a difficulty in determining when (if ever) is the appropriate time to determine the employee has frustrated their contract and so is dismissed. Do you keep their job open? Do you terminate their employment? it is not as clear-cut as you may think and employer must be very careful when moving forward on something such as this. There are some critical factors that must be observed when looking at this, which were set out in Hare -v- Murphy Brothers [1974] 3 All ER 940, namely;
- How long has the employee been employed?
- What kind of position do they hold? is it one of trust?
- How long is their prison sentence? if the sentence is short frustration will not apply
- Can the company keep the role open or do they need to hire a replacement?
Employers must take account of these factors and as per Bailey -v- BP Oil, they must keep procedures in mind, although they may be unable to be performed with the employee in prison
When External Issues Impact on the Workplace
Employers need to be mindful of the above issues when external issues impact on the workplace, they should take care to deal with matters by following internal rules and procedures and also be clear on how this matter impacts on their ability to carry out their work. If there is no impact then it makes it difficult for an employer to justify dismissal, however depending on the position and levels of trust involved it can impact on an employers trust and confidence in an employees ability to carry out the roles.
