Our second case highlights how employers can sometimes rectify procedural faults. It involved a coach driver. The Dublin Port Tunnel Authority contacted the respondent company regarding the claimant’s driving in the tunnel on one occasion. The issues of tailgating and dangerous overtaking were highlighted.

The respondent investigated and looked at onboard video footage as part of the investigation. In what sounds like something out of one of those internet video clips of worst drivers ever, the claimant was noted to be drinking from a cup, he lifted both hands off the wheel, he was observed to stretch behind him looking for something and he appeared to be writing something.

Clearly, in most people's eyes, this would be a case of dross misconduct. The employer made a 'manifest flaw' of process in the EAT's opinion by having a letter of termination ready to be delivered before a conclusion should ever have been drawn. The procedural flaw was appealed and the appeal process recognised the unsatisfactory nature of how the initial investigation/disciplinary was conducted and it overturned the decision.

The employer sought to re-run the process with a new and independent person, although the claimant and his representative opposed this. The EAT said it, "... recognises that on occasion it will be appropriate for a de novo hearing to be conducted in the aftermath of a decision having been overturned on appeal." It was impressed by the evidence of the HR manager brought over from the UK to run the new hearing and consider any mitigating circumstances, given the claimant did not deny the charges. The EAT concluded that summary dismissal was warranted and the claimed failed.

http://www.workplacerelations.ie/en/Cases/2013/October/UD263_2012.html