D. Cases

The Respondent Organisation in this case comprises of 2 Directors who are husband and wife, and 3 clerical assistants. The Claimant was one of the clerical assistants. The Directors of the Organisation submitted that the Claimant began working with them on 2nd September 2008; they were satisfied with her overall work, but over exuberant at times. On the 14th January 2010 she was called to their office for a discussion on a variety of work related matters. The Claimant was asked to “tone it down” in front of the public. This meeting was not in the nature of a disciplinary meeting, but merely in the ordinary course of management of the business.  

On the 21st January 2010 one of the Directors came across the Claimant’s social networking site, which was open on a computer, she was shocked to see herself and the Organisation described in disparaging terms. She consulted with her Co-Director and summoned the Claimant to a disciplinary meeting. The Director advised the Claimant to bring a work colleague to the meeting, which she did. At the meeting the Claimant was presented with the material that had been encountered. The Respondent Directors asked to have access to her facebook site as they had concerns in relation to a breach of confidentiality and the Claimant acceded to this request. A number of messages were discovered. The Claimant was suspended on full pay pending investigation. Following the investigation the Claimant was dismissed on the 28th January 2010 for overuse of the internet and a breach of trust.  

The Tribunal found that the Respondents acted reasonably in the manner in which they dealt with the matter up to and including their dismissal of the Claimant from her employment. The Claimant’s claim under the Unfair Dismissals Acts fails.  

This case highlights that as long as an Organisation follows fair procedures and the Organisations policies when carrying out an investigation that should a situation warrant it, an Employee can be dismissed for their conduct.

UD933 - Employee v Employer - Fair Procedures

The Claimant contends that he was unfairly dismissed. The Claimant was on a final written warning from June 2009 for a period of 12 months. In November 2009 the Claimants lorry was delayed, as he drove he stopped on the hard shoulder of the motorway to accept a phone call, subsequently missed his exit and was forced to make a U-turn at a later stage. The Claimant was brought to a disciplinary where it was ruled he was in serious breach of road safety and company safety rules, and had been guilty of many other offences contrary to Organisation policy. The finding was appealed but was upheld.  

A Manager of the Respondent Organisation advised that he received a phone call on the day in question to say that the Claimant was on the radio. The Manager looked at the Claimant’s GPS system and it showed he was stationary. A disciplinary hearing was held on 6th January 2010, and adjourned, it was reconvened on the 19th January and it was decided to dismiss the Claimant for gross misconduct on the 21st January.  

The Claimant submitted that on 18th November 2009 he informed the Depot Manager that he had an ear infection and would not be in work the following day. The Claimant was assured he could finish early and on that basis attended work. The Claimant received a phone call and pulled in on the hard shoulder, and subsequently missed his exit; he found a safe place and turned. The Clamant stated that he was informed the meeting on 20th November 2009 was informal, and had he known it was a formal investigation would have requested union representation.  

The Tribunal found that the circumstances that led to the Claimant being on a final written warning did not warrant such. The Tribunal found a lesser sanction than dismissal would have been appropriate, particularly as the Claimant turned in for work ill, to accommodate the Respondent. The Tribunal awarded the Claimant €30,000.  

This case highlights the importance of disciplinary sanctions being in proportion to the offence. An Organisation should take into account the Employees record, the circumstances surrounding the action and anything else that is appropriate in making an informed decision. The Tribunal does not look favourably on sanctions which are not in proportion to the offence.

UD672 - Employee v Employer - Proportionality of Outcome

The Claimant was employed as a Montessori teacher in a crèche from 2008 until her dismissal on 13th July 2011 for allegedly slapping a child on the hand.  

A Manager for the Respondent Organisation received a complaint on 13th July 2011 from the Mother of a three year old child that the Claimant had allegedly slapped the child. The Manager took written complaints from both the child’s mother and aunt and referred them to the owner of the Respondent Organisation. The owner of the crèche took the complaint and spoke with a second manager, and dismissed the Claimant on the basis of gross misconduct; the Owner met with the Claimant and gave her a previously prepared letter advising of her dismissal. The Claimant was not interviewed prior to her dismissal.  

The Claimant denied the allegation and submitted to the Tribunal that she was never told the date of this alleged incident. The Claimant was not given notice of dismissal. The Tribunal found that in all cases of dismissal for conduct there must be an investigation carried out by the Employer. The onus is on the Employer to show that this investigation was fair and reasonable in the sense of being open-minded and full, i.e. that no issue which may reasonably have a bearing on the decision is left unexplored. The Tribunal found that the way the Respondent dealt with this matter is about as far removed from fair procedures as could be imagined:  

• The owner of the crèche did not know the date of the alleged assault
• The Claimant was not interviewed concerning the alleged assault The Claimant did not have written statements provided to her
• The decision was made to dismiss the Claimant prior to being interviewed
• Dismissal letter prepared prior to the meeting
• Another Employee attended dismissal meeting as a “witness” for the Claimant – Without the consent or knowledge of the Claimant

The Tribunal found that the Claimant was unfairly dismissed and awarded €26,000 under the Unfair Dismissals Acts, 1977 to 2007.  

This case reiterates that Organisations must be fair and reasonable, carry out investigations into alleged incidents, and not have a pre-determined view of the outcome to an investigation. Employers should make the Employee who is subject to an investigation aware of all allegations and complaints against them, provide an opportunity for the Employee to deny the allegations or explain the incident, and seek evidence were the allegations are denied or the facts are in dispute.  

MN1717 - Employee v Employer - Fair Procedures in the Disciplinary Process