Case Name: David Farrell v Aero-Clean Ireland Limited (UD 847/09)

Legislation: Unfair Dismissals Acts, 1997 to 2007 and Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Jurisdictions/Subject Matter: Procedural Requirements


Facts

The claimant commenced work as a cleaner for the company who owned the business prior to the respondent company in November 2005. The respondent company took over the business in November 2007 and the claimant was promoted to supervisor.

The general contract manager (“GM”) for the respondent gave evidence before the Tribunal and stated that a letter was sent to the claimant on 15 September 2008 inviting him to a meeting to investigate allegations that he had falsified his time sheets. This meeting took place on the 10 October 2008 and the claimant attended without a representative. However, other unrelated matters were discussed and the time sheets were not mentioned.

The claimant was then out of work due to an alleged accident in the workplace. He was certified to return to work in early March 2009 and on 16th March 2009, the GM wrote to him inviting him to a meeting to discuss the outstanding issues from October. The meeting took place on 20th March 2009 and the GM was accompanied by the operational manager. Once again, the claimant attended without a representative. It was submitted to the Tribunal that the claimant said he did not need a representative and that he did not raise any defence to his actions. The claimant told the Tribunal that he understood this to be a meeting about his return to work and that he was not prepared for a disciplinary meeting.

The Tribunal was told that the claimant was shown copies of statements from his colleagues saying that he was absent from work for the dates on which the alleged falsified time sheets were signed. The claimant did not receive copies of these statements in advance of the meeting and was not given the opportunity to question the version of events stated in them.

Two other witnesses for the respondent gave evidence before the Tribunal and outlined specific dates when the claimant was not in work but had submitted time sheets to the contrary.

After the meeting on 20th March 2009, the GM made the decision to dismiss the claimant on the basis that falsifying time sheets constituted fraud and gross misconduct, the claimant was a supervisor and should be reliable, and that she had lost trust in the claimant. This decision was discussed with the director. A letter of dismissal was sent to the claimant on the 23 March 2009.


Determination

The Tribunal was not satisfied that the investigative and disciplinary process invoked by the respondent was fair and reasonable. It was held that one day’s notice for the meeting on 20th March 2009 was unfair and unreasonable and that the claimant had not been notified of the nature of the meeting. The Tribunal also concluded that a fair and reasonable disciplinary process would have afforded the claimant the opportunity to question the witnesses who had made adverse allegations against him.

The Tribunal also referred to an internal meeting discussing the claimant’s case and said that this meeting was disciplinary in nature and therefore, the claimant should have been made aware of it and given the opportunity to attend it.

In holding that the procedural defects were so significant as to render the dismissal unfair, the Tribunal referred to section 6(3) of the Unfair Dismissals Acts 1977 as amended by section 5(b) of the Unfair Dismissals (Amendment) Act 1993. However, the Tribunal concluded that on the balance of probabilities from the evidence given, that the claimant was guilty of misconduct which substantially contributed to his dismissal. Therefore, an award of €1,000 was made under the Unfair Dismissals Acts 1977 to 2007.

The Tribunal also allowed the uncontested claim in respect of minimum notice of 2 weeks wages and awarded €2,029 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.


Legal Review

The above case illustrates the need for employers to conduct any form of disciplinary meetings or hearings fairly and to follow the correct procedures throughout.

The nature of meetings is important. In this case, an internal discussion meeting was characterized by the Tribunal as being disciplinary in nature. Essentially, any meeting at which allegations against an employee are being discussed has the potential to be a disciplinary meeting.

It is also very easy for an investigation to turn into a disciplinary meeting and, where this happens, employees are often without representation, thus leaving employers open to claims for unfair dismissal. The practice of holding detailed “investigation meetings” at which an employee is expected to provide information in detail, can be unsafe. If allegations are put to employees at such a meeting, such that the employee is expected to defend themselves, then this is a disciplinary meeting. The safest course of action for employers is often to avoid “investigations”, (except of a very preliminary nature to ensure unsustainable allegations are not put to employees) and instead to set out the allegations in detail and in writing, and to invite the employee and his representative (if any) to a disciplinary hearing to present his defence to those allegations. After the hearing at which the employee has a chance to defend himself, a decision should be made based on the facts before the decision maker in the meeting.

Every step of a disciplinary process should be documented and copies of any documents to be relied upon given to the employee well in advance of the hearing.