Shortly after its establishment the Workplace Relations Commission (WRC) issued instructions to practitioners, claimants and respondents availing of their services in dismissal cases (WRC, 2015). The instructions directed employers that they:

… must set out the facts of the events leading to the dismissal including, where relevant, disciplinary meeting(s) held, investigation undertaken, disciplinary hearing(s) conducted, internal appeal(s) conducted, any other relevant information ...

Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order, 2000

This instruction goes to the heart of many unfair dismissal findings. With the onus of proof normally residing with the employer, it is also apparent that in the vast majority of cases where ‘procedure’ features, employers have an uncanny ability to make a mess of things.

Moffatt (2011) is definitive on this point, noting that:

... the Employment Appeals Tribunal (EAT) has always taken the view that if an employer acts in a manner that is procedurally unfair the dismissal itself will be held to be unfair (p. 374).

In this respect, an important starting point is the Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order, 2000 (which is currently under review). The Code was drawn up under the auspices of the Labour Relations Commission (now the WRC) and sets down standards which a third party ‘expect to serve as minimum entitlements for any workplace’ (Irish Trades Union Federation (ITUF), 2003: 111). The Code states that:

… procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned. (Dept. of Enterprise and Employment, 2000: 3).

The 1993 Unfair Dismissals Act (UDA) also addresses procedural obligations (at section 5(b)), providing that in the determination of ‘fairness’, the decision maker shall have regard to:

(a) the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of the 1977 Act.

Rules of Natural Justice

With reference to these procedural obligations, one of the most extensive listings of the ‘rules of natural justice’ is to be found in the aforementioned Federation’s guide (ITUF, 2003), which explains that ‘fair procedure’ within industrial relations ‘is often expressed as a right to natural justice’ (I.T.U.F. 2003: 116). The main elements of such rights are listed as:

• Full notice of charge or charges;
• The right of representation;
• The right to a full and objective investigation of the issues;
• Opportunity and time to develop and present a defence;
• Dismissal should, ideally, not be administered by an immediate superior;
• That any penalty should be appropriate to the offence;
• That penalties should follow a pattern of verbal warnings, written warnings, suspension and ultimately or for very serious, named offences, dismissal;
• That very serious misconduct might warrant immediate suspension pending dismissal;
• That there is a right of appeal to a level above that of the person issuing the penalty;
• That mitigating circumstances be considered;
• That the employee should be presumed innocent of any charge(s) until evidence is presented to disprove this;
• That penalties should be part of an attempt to improve behaviour rather than simply punish. (ITUF, 2003: 116).

Directly related to the matters of dismissal and procedural fairness are the issues of ‘investigation’ and the ‘rules of natural justice’. Turning firstly to ‘investigation’ practices, whilst the exact requirements of each investigation should be determined by the facts of the case, there is an onus on the employer to show that it was ‘fair’ (i.e. that it was ‘open-minded’ and ‘full’, in so far as there was no issue which might reasonably have a bearing on the outcome that was left unexplored) (Cox et al. 2009). According to Madden and Kerr (1996: 308):

… if an investigation fails to meet these requirements, the decision to dismiss is likely to be found unfair.

That is, ‘the investigation must genuinely be an investigation’ as opposed to ‘a formality’ and should start from a ‘neutral perspective’ (Cox et al. 2009: 662). In this regard practitioners should also be aware of recent legal developments indicating that where an investigation creates binding findings or determinations it attracts natural justice entitlements that may extend to the right to cross-examine and be legally represented (Slattery, 2018). As Slattery (2018) explains: ‘there are … circumstances where an employer should facilitate a request by an employee to be legally represented during a disciplinary procedure, especially where the allegations are serious … and could lead to termination of employment … an entitlement to be legally represented at the investigation stage may arise during an investigation which makes binding findings …’.

The Tribunal’s renowned determination in Gearon v Dunnes Stores Ltd. (UD 367/1988) also serves as a good reminder as to the status of ‘natural justice’ in dismissal (and disciplinary) cases:

The right to defend herself and to have her arguments and submissions listened to and evaluated by the respondent in relation to the threat to her employment is a right of the claimant and is not the gift of the respondent or of this Tribunal. As the right is a fundamental one under natural and constitutional justice it is not open to this Tribunal to forgive its breach and accordingly the Tribunal determines that the claimant was unfairly dismissed from her employment with the respondent.

Fair Procedure

In a similar vein, Faulkner (2013: 199) concludes: ‘put very simply, principles of natural justice must be applied unequivocally’. Referencing the McKenna v Butterly case (UD 339/2006) - she notes that: ‘even the most obvious case will fail if fair procedures are not followed’.  Notably, in a survey of Tribunal members (by Wallace and Moyneaux, 2007), it was found that 77 per cent (of respondents) perceived that unfair dismissals cases were decided on procedural grounds fairly often, very often or all the time, rather than the behaviour, conduct and performance of the employee or other substantive matters. This conclusion is endorsed by Legal Island’s HR Suite (2015), noting that:

.. the majority of cases at third parties are lost due to a failure to follow procedures … employers invariably lose Unfair Dismissal cases because fair procedures and the rules of natural justice were not adhered to (p. 2).

Nevertheless, it is also relevant that Madden and Kerr (1996: 202) advise that:

It was quite a different matter, however, if the Tribunal was able to conclude that the employer, at the time of dismissal acted reasonably in taking the view that, in the exceptional circumstances of the case, the procedural steps normally appropriate would have been futile and could be disposed with. Such cases will be rare, however and the normal reaction of the Tribunal to an absence of fair procedures ... is to find that the dismissal is unfair.

A similar point is made by Cox et al. (2009: 648-658)) who point out that:

… the precise nature of what is required insofar as fair procedures are concerned will inevitably vary from workplace to workplace.

The complexity of the matter is more apparent from their conclusion that:

… what constitutes a fair hearing will depend on the facts of an individual case …. Depending on the circumstances of the case, the employee’s right to fair procedures may require that (s)he be afforded an oral hearing into his or her case. This is not, however, inevitable and will depend on how serious the matter is’ (Cox et al. 2009: 667-9).

Daly and Doherty (2010) also note that what is ‘precisely required by the principles of natural justice’ depends on the ‘facts of the case’ (p. 279). For example, this was evident in the Mooney v An Post (1998 4 IR 288 SC) case, where the Supreme Court held that the claimant was not entitled to an oral hearing or an implied right to remain silent. As noted above (and on the same theme) Daly and Doherty (2010) caution that:

Whether or not an employee can claim a right to cross-examine his or her accusers will depend on the circumstances of the case … (p. 279).

The complex matter of procedural entitlements also featured in the Shortt v Royal Liver Assurance Ltd. High Court case (2009 ELR 240), when the plaintiff alleged a breach of fair procedures, as he wasn’t afforded the right to cross-examine or test the evidence against him. The court’s determination was that though the conduct of the disciplinary process had not been perfect, the imperfections were ‘not likely to imperil a fair hearing or a fair result’. This issue subsequently featured in the High Court Fanning v Commissioner of An Garda Siochana (2011 IEHC 58) case, which held that:

… the disciplinary policy in question was clearly a guide and not a piece of disciplinary legislation … the subject matter of the within proceedings is not a criminal trial but an internal enquiry.  Such enquiries may proceed on a less formal basis and the Court should look at the enquiry in the round in assessing whether fair procedures were followed.

A notable take on this discretionary dimension featured in the Swiatek v LIDL (UD335/2015) case, when the Tribunal (in a majority decision) held that despite the denial of the claimant’s right to representation the dismissal was fair. Related thereto, reviewing the English High Court case (of Martin John Stevens v University of Birmingham - EWHC 2300 (QB)) Murphy (2015) concluded that:

… once again … the facts of each individual enquiry will govern the extent to which natural justice entitlements apply to the investigative stage of the process.

Notwithstanding this caveat, Sheehan (2008) has found that 82% of cases that claimed unfair dismissal on the ground of improper procedure succeeded. Likewise, Mulligan (2001: 20) noted that ‘the issue of correct procedures comes up again and again in the determinations’ of the Tribunal. His review of such cases led to the conclusion that:

… ultimately the Tribunal … reached their decisions on the basis of whether or not procedures were followed (Mulligan 2001: 20).

Arising from a more extensive study – recently undertaken at the Dublin Institute of Technology - of over 350 Tribunal case determinations from the 2008-14 period, it was found that procedure was a key determinant of the Tribunal’s decision in almost 2 in every 3 cases. Transgressions at the investigation and\or dismissal stage contributed significantly to an ‘unfair’ finding in a significant number of these cases. This study also found that a number of these determinations hinged directly on ‘other procedural’ transgressions (e.g. redundancy (i.e. unfair selection), bullying (an inadequate investigation linked to constructive dismissal), grievance and disability (failure by claimants to use the relevant procedure appropriately) and medical (failure by the respondent to use the procedure appropriately)).

Probation Period

Another interesting feature to surface in this subject area is that even for those employees not covered by the provisions of the UDA (e.g. a probationer with less than 12 months’ service and with a contract of employment stipulating that the disciplinary procedure does not apply during the probationary period), the aforementioned Code’s provisions may still be relevant, as the Labour Court determined that:

… the Claimant’s contract of employment purported to provide that normal disciplinary procedures do not apply during the probationary period. However, this Court has consistently held that an employer is not relieved of the obligation to act fairly during a probationary period and that the requirement of the Code of Practice applies in all circumstances …. (Glenpatrick Watercoolers Ltd. v A Worker – CD/15/208).