Fair Procedures- WRC Decision Reinforces Significance in Employment Context

by Ger Connolly, Partner in the Employment Law and Benefits team at Mason, Hayes & Curran

The case of An Employee v A Garage (ADJ-00037740) related to an employee of a garage who was employed for over 50 years. He was dismissed following an allegation of theft. The complainant brought a number of claims relating to unfair dismissal, working time, minimum wage, notice and a failure to provide a statement of terms and conditions of employment. The case is significant in that it highlights the importance of following a fair process whilst engaging in disciplinary action, as well as the importance of maintaining adequate records of employee’ working hours.

Unfair Dismissal

The claimant worked 7 days per week at the garage, 364 days per year, earning €450 per week. There was some disagreement between the garage and the claimant in relation to the exact hours worked by the claimant. However, the claimant was well in excess of the 48-hour limit per week. In November 2021, there was an incident where a customer paid in cash for coal and there were concerns on the part of the owner that the claimant intended to keep the cash as he had not rung the coal through the till. CCTV footage showed the same thing occurring again the same day with another cash payment for coal. The claimant was given a verbal warning. The garage continued to survey the CCTV footage and saw the claimant putting cash received for sales in his pocket on numerous occasions. These allegations of theft were denied by the claimant to the WRC.

The claimant was brought into a meeting and confronted by their employer. There was a conflict of evidence as to what happened at this meeting. The claimant alleged that he was summarily dismissed and was not given the opportunity to defend himself. The employer contended that the purpose of the meeting was to show the CCTV footage to the claimant and give him an opportunity to respond, however the claimant resigned and did not refute the allegations made.

The WRC found for the claimant in this instance, finding that it was unlikely that during the short meeting the claimant had been shown the footage. This demonstrates the importance of maintaining detailed notes in relation to any disciplinary meetings or actions which occur. The WRC found that the process followed did not follow fair procedures and noted that the general basic rules of fairness and natural justice apply to dismissal including:

• The right to be informed of the issue
• The right to representation
• The right to a fair hearing
• The right to state their case, which includes the right to be presented with the evidence and to have an opportunity to examine and refute same, and
• The right to appeal the outcome

The WRC referred to the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and noted that whilst the code is not legally binding, the WRC will take regard of adherence with the Code. The WRC found that the failure to follow fair procedures rendered the process unfair. An award of €10,000 was made to cover the unfair dismissal aspect of the claim.

Other failings on the part of the employer

There was also a series of other findings made against the employer. The claimant was awarded €5,000 euro due to the failure to provide him with a 24-hour rest break every 7 days. The complainant was also awarded €5,000 as a result of the employer breaching the 48-hour working week limit imposed by the Organisation of Working Time Act 1997. The WRC emphasised the failure of the employer to maintain accurate records of hours worked, noting employer obligations in relation to this and accepting the evidence of the claimant regarding hours worked as a result.

A further award was made by the WRC for the failure to provide the claimant with adequate annual leave. The adjudication officer noted that annual leave was, amongst other things, a health and safety issue for employers. Awards were also made due to the failure of the employer to provide the claimant with a statement of the terms of his employment as required by the Terms of Employment (Information) Act and also due to the failure of the employer to provide adequate notice or payment in lieu thereof to the employee.

Conclusion

This case highlights the need for employers to maintain careful disciplinary processes, taking account of fair procedures. In addition, this decision illustrates the necessity of recording detailed notes of all disciplinary meetings with employees to demonstrate to an adjudicator or judge that fair procedures have been followed. This case also demonstrates the importance of maintaining records of working hours of employees; in this case the failure of the employer to maintain adequate working records resulted in the complainant’s account of working hours being taken as fact.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

About the author

Ger is a partner in the Employment Law and Benefits team at Mason , Hayes & Curran. He advises employers in the public and private sector on all employment law and industrial relations issues. Ger acts for clients in various employment claims such as unfair dismissal, equality/discrimination, occupational stress, fixed-term and part-time work, restraint of trade, strikes and picketing.
Ger has extensive experience in advising on all aspects of the termination of employment including redundancy and collective redundancy, unfair dismissal, wrongful dismissal and constructive dismissal. He provides expert support to the firm’s corporate clients on the various employment law issues arising in the context of mergers and acquisitions. This includes in-depth due diligence exercises, compliance reviews, negotiating employee-related indemnities and warranties and advising on the applicability of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

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