Today's articles concerns two matters - time limits for appeals against Rights Commissioners' decisions and the right for employees to cross-examine witnesses at disciplinary hearings.

CASE NAME AND REFERENCE: McMahon v Solvere Ltd UD 1679/2009

COURT OR TRIBUNAL: Employment Appeals Tribunal (the “EAT”)

LEGISLATIVE REFERENCE: Unfair Dismissals Acts, 1977 to 2007 (the “Acts”)

JURISDICTIONS/SUBJECT MATTER: Appeal for the implementation of recommendation of the Rights Commissioner

FACTS

The case involved an appeal to the EAT for the implementation of the recommendation of the Rights Commissioner in circumstances where the employer never appealed against the recommendation of the Rights Commissioner within the specified time-frame.

DETERMINATION

The EAT which was chaired by Ms. Niamh O’Carroll-Kelly in Dublin on 11 February 2010, made a determination to uphold the recommendation of the Rights Commissioner. The respondent (the employer) was ordered to pay the appellant (the employee) the sum of €11,250 under the Acts.

LEGAL REVIEW

As complaints to the Rights Commissioner can be automatically appealed to the Employment Appeals Tribunal, and then again to the Circuit Court by either the employer or employee, complaints under the Acts are often commenced directly in the Employment Appeals Tribunal rather than to a Rights Commissioner. This is in part due to the fact that a hearing at this level adds to costs and to the number of potential hearings. In this case though, the case went first to the Rights Commissioner, and the employer failed to either appeal the Rights Commissioner’s decision or pay the amount awarded.

In its determination, the EAT quoted Section 8 (4) (a) of the Acts (mistakenly referred to as Section 7 (4) (a) in its Determination), which states:

“Where a recommendation of a Rights Commissioner in relation to a claim for redress under this Act has not been carried out by the employer concerned in accordance with its terms, and the time for bringing an appeal against the recommendation has expired and no such appeal has been brought, the employee concerned may bring the claim before the Tribunal and the Tribunal shall, notwithstanding subsection (5) of this section, without hearing the employer concerned or any evidence, make a determination to the like effect as the recommendation.”

Therefore if an employer fails to implement a Rights Commissioner recommendation, the EAT is entitled to confirm its recommendation without hearing from the employer, or hearing any evidence.

Under Section S 11 (3), if an employer doesn’t implement a determination of the EAT within 6 weeks from the date the determination is communicated to the parties, the employee can apply to the Circuit Court who will make an order directing the employer to carry out the determination without hearing the employer or any evidence. The Circuit Court may also order the employer to pay interest on compensation owed to the employee if it sees fit and has the power to change the nature of the award from re-instatement to financial compensation. The Circuit Court will usually award costs to the employee.

The reason for these mechanisms is that neither the Rights Commissioner nor the Employment Appeals Tribunal is a court. It is only a court order that can be enforced.

In the absence of an appeal S 8 (4) and S 11 (3) ensure enforcement of recommendations and determinations of the Rights Commissioner and EAT without hearing employer evidence.

The Tribunal did however show some leniency in Edwards v M &P Construction Ltd UD 842/2004. The employee sought implementation of a Rights Commissioner’s recommendation. The employer contended it had not received any notice from the Labour Relations Commission of the hearing and was not aware of the claim until it received a copy of the Rights Commissioner’s findings. The Tribunal noted that although it had to have regard to the “strong words” used in S 8(4) it was bound to act judicially and have regard to the principles of natural justice. On the evidence the Tribunal was not satisfied that the employer received notice of the Rights Commissioner hearing and declined to make an order under Ss (4) treating the hearing as an appeal. Although this decision is welcome, it is arguable that it breaches the strict letter of the law, and employers should always react to Rights Commissioner recommendations or Employment Appeals Tribunals determination in good time if possible.


Case Name and Reference: Siaulys v J.C. Savage Supermarket Ltd UD50/2009

Court or Tribunal: Employment Appeals Tribunal (the “EAT”)

Le: Unfair Dismissals Acts, 1977 to 2007 (the “Acts”)

Jurisdictions/SubjectMatter: Behaviour inconsistent with employer's business; fair procedures

Facts

The respondent (the employer) is in the supermarket business. The claimant (the employee) worked as an assistant in the red meat department. The claimant reported to the senior charge hand on a day to day basis. On the day of the incident, the senior charge hand was off so the deputy charge hand was in charge. The department was short staffed and the deputy charge hand instructed the employee to take his break before the deputy charge hand.

When the deputy charge hand returned from his break, the employee was cleaning the cold room. The deputy charge hand told the employee to go on his break for the second time. The employee refused as he wanted to wait and go with his girlfriend who worked in a different department. The deputy charge hand closed the door of the cold room and there was an altercation which resulted in the deputy charge hand telling the employee to go home. The employee then met the deputy manager who also told him to go home.

The store manager told the EAT that the following Monday he met the deputy charge hand who explained what had happened. Shortly afterwards he met the employee where he outlined that it was a serious matter and suspended the employee with pay until a further meeting on Thursday.

At the meeting on Thursday, the employee was not given the opportunity to question the deputy charge hand’s version of events and no other staff member was asked about the incident. No written statements were taken from either the deputy charge hand or the employee. The decision was taken to dismiss the employee for gross misconduct. No other sanction was considered.


Determination

The EAT, which was chaired by Ms. P. McGrath BL on 8 June 2009 and again on 25 and 26 January 2010, found that the investigation process did not amount to a ‘full investigation’ as set out in the employer’s staff handbook and therefore determined the dismissal to be unfair. However, the Tribunal took into account the employee’s actions and only awarded the employee €6000 under the Acts.


Legal Review

Sometimes we review EAT decisions were employers have failed to follow their own disciplinary procedures. As highlighted in this case, the Tribunal specifically noted that contrary to the employer’s own disciplinary procedure, the employee was not given an opportunity to objectively contradict the allegations put to him.

Case law suggests that the employee is entitled to challenge the evidence presented against him by cross examination. In Gallagher v Revenue Commissioners [1995] 1 IR 55 the Supreme Court outlined that:

“to deny the applicant the opportunity to cross examine witnesses as to facts central to the establishment of the charges against the applicant amounted to a failure to afford the applicant fair procedures”.

There is an onus on employers to manage their grievance and disciplinary issues in a manner that is consistent and in line with their own internal policies. The Tribunal pointed out that the employer was entitled to dismiss for gross misconduct but in this case the investigation process was deficient.

It is well established that an employer is entitled to summarily dismiss where gross misconduct is established. The Tribunal outlined that gross misconduct can and does include a refusal to carry out reasonable and lawful instructions from management. The EAT in Hennessy v Read and Write Shop Limited UD 192/78 outlined the general approach to be taken to conduct-related dismissals:

“In deciding whether or not the dismissal... was unfair we apply the test of reasonableness to misconduct in these terms (1) the nature and extent of the enquiries carried out by the employer prior to the decision to dismiss… and (2) the conclusion arrived at by the employer that on the basis of the information resulting from such enquiry, the employee should be dismissed.”

The conduct of an employee will be taken into account in considering whether he contributed to his own dismissal. While the employee’s actions may be considerable and justify dismissal, it will not be enough to exonerate the employer of liability if fair procedures are not followed.

Employers must be aware that, though they might have legitimate grounds for a dismissal, the dismissal must be carried out in a way that is procedurally fair as failure to do so will invariably result in an adverse finding against the employer.