Some Recent Employment Tribunal Decisions

Peninsula Team

October 28 2011

It is important for employers to keep abreast of the movements within the employment tribunals and the determinations that they are publishing as it will allow employers to exercise due caution when dealing with their own internal eamployee matters. In this regular piece we will review 3 recent publications, primarily in respect of unfair dismissal matters but also on other interesting cases including equality, payment related matters etc. Ennis -v- Management Support Services (Ireland) Limited(UD 2252/2009) Facts: The employee in this case was employed as a plumber since March 2008 with the employer who operated in the water-cooler business. Issues arose in when the Operations Manager visited the site where the employee was working and discovered that the sanitisation was not up to standard and also the employee was not wearing all the safety equipment required and as a result the employee was issued with a verbal warning. Within a month, the employee received a written warning due to a customer complaint received about the cleanliness of the employee’s water coolers. Around this time, during the course of a grievance process lodged by the employee, the employer removed the use of the company van from the employee in accordance with changes in the employer’s company policy.  Following the written warning another complaint was made against the employee from a major customer of the company regarding the coolers and as a result the employee was dismissed. The employer argued at Tribunal that the employee had received adequate training to do his job and that the employee was putting their business through his poor standards of work. As a result they argued that there was a breach of trust and confidence. The employee argued that he was unfairly dismissed as the employer did not follow the appropriate disciplinary procedures. He argued that he was advised of his verbal warning by telephone and was never advised of his right to appeal in respect of both the verbal and written warning and this was in breach of company procedure. He also alleged that removing the company vehicle made it difficult for him to reach company targets and that this directly contributed to the employers reasons for dismissing him. Determination: The Tribunal determined that “there was conflicting evidence regarding the claimant’s performance but the respondent was very lacking in procedures and did not establish that it had handled the matters correctly and carefully. It was not established that the respondent received customer feedback with maximum accuracy and promptness. There was no real clear evidence against the claimant who was quickly dismissed without properly-established certainty as to the degree to which he might or might not have been liable to criticism.” Conclusion: The dismissal was deemed to be unfair and the employee was awarded €32,500 in compensation. The lessons to be learned from this case is that first and foremost affording an employee the right to appeal a disciplinary decision will benefit the employer if the matter subsequently proceeds to Tribunal, irrespective of whether or not the employee exhausts this right to appeal. Secondly, if a client complaint is received about an employee, a full and proper disciplinary investigative procedure should follow to determine the accuracy of those complaints and the employee’s liability for same. Finally, all disciplinary warnings should be in accordance with disciplinary procedures and should be evidenced in writing, even if they are deemed the first stage “verbal” warning. Employee -v- Employer(UD 171/2010) Facts: This case concerned an individual who was employed as a night porter in a hotel.  The employee failed to take a number of payments from customers and the employer suffered a financial loss because of this.  The employee was issued with a verbal warning and two months after was issued with a written warning.   Three weeks after the written warning was issued, the employee turned up for work late, falsely completed her time sheet, wore runners to work and failed to wear her name badge.  The employee was suspended without pay for two weeks via telephone and a letter was issued to the employee to attend a disciplinary.  The employee was dismissed in the meeting and was not given the right to appeal.  At the Tribunal hearing the employee admitted that she had made the above mistakes and acknowledged the warnings received. Determination: The Tribunal stated that the employer had fell short in meeting their obligation to act fairly in its dealings with the employee.  They noted that the employer did not have any disciplinary procedures and in evaluating the process they did adopt against what would be fair and reasonable the Tribunal determined that the “employer fell short in meeting its obligation to act fairly in its dealings with the claimant.” They specifically pointed out that the suspension without pay in advance of the meeting itself constituted a sanction against the employee before the disciplinary hearing had even begun and also that the employer did not comply with the principles of natural justice before arriving at the decision to suspend.  The Tribunal found that the entire process was rushed and that the employee was not given enough time to show improvement.  They determined that the employer should have taken more time in arriving at the decision to dismiss and that the decision was too harsh in view of the above. The Tribunal also found fault with the employer not affording the employee the right to appeal the decision. Conclusion: The Tribunal awarded the employee €17,500 for unfair dismissal. The primary lesson to be learned from this case is that procedure is king when it comes to Tribunals. Again the employer did not follow a fair disciplinary procedure and there was no right to appeal. The employer in this case adopted a punishment approach to its disciplinary process and did not seek to actually correct the employee’s performance through re-training or guidance. Thus, employers should follow-up performance related issues with re-training and allow the employee some time to improve. An important aspect of this case was that the employee was immediately suspended without pay pending the disciplinary hearing. Suspension should only ever be with pay pending disciplinary hearings as suspension without pay is a disciplinary sanction in itself. Thus, in order to suspend without pay, an employer needs to reserve the right to do so in employee terms and conditions and it must only follow a fair disciplinary process. Generally speaking an employer could not suspend without pay and issue a warning for the same offence as that would be deemed double punishment. The last issue the tribunal flagged was the fact that the employer reached the decision to dismiss the employee in the actual hearing itself which contributed to the decision being rushed and not enough time spent in reaching this decision. McCahey -v- Tomco Foods Ltd(UD 2226/2009) Facts: This case concerned a store man who worked for a wholesale distributor of chilled, frozen and ambient food products. The claimant’s employment commenced in 1991 but in 2009 issues arose whereby the employer couldn’t contact the employee for a number of hours, which was an issue as they provided a same day delivery service. The employee received instructions to watch his phone and was also issued with a CB radio. Following various breaches of procedures, including the employee leaving work early when orders had been completed and not returning from leave on time, the employee received a written warning and subsequently a final written warning. The employee appealed the final warning and also queried whether or not there were any redundancy package offers on the table or any options for a reduced working week. The employer replied to confirm his hours wouldn’t be reduced, that there was no redundancy offer and also asked him to clarify his grounds for appealing; the employee did not respond to this request. A couple of months later the employee was dismissed after there were a number of deliveries which were short of products and the employee lied to his manager by stating these products were not in stock when in fact they were. The employee was dismissed summarily that day without any disciplinary hearing. Importantly, throughout the course of the disciplinary process from written warning to dismissal the employer failed to keep minutes of any meetings and did not really follow-up with the employee, save for the written warnings, with any outcome letters from training reviews. Determination: Interestingly, and somewhat confusingly, the employer’s at Tribunal conceded that the dismissal was technically unfair, but contended that there was a contribution on the side of the employee which should be taken into account by the Tribunal when deciding on the level of compensation. Thus, the Tribunal did not consider the fairness of the dismissal as the employer had already stated that it was unfair and they only then considered how much compensation should be awarded. Conclusion: The Tribunal awarded the employee €27,000 for unfair dismissal. The lessons to be learned from this case is that an employee must only be dismissed in accordance with disciplinary procedures and effective records of training and management instructions ought to be maintained to evidence employee performance issues at a later date. Also it is not recommended to concede defeat in an unfair dismissal case such as this from the outset.

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