A dismissed employee has elected to appeal the decision to terminate his employment for gross misconduct. He claims however that we cannot terminate his employment pending the appeal and that he remains an employee until the appeal has been determined. How do I handle it?

Antoinette Vahey writes:

It is important, in such circumstances, to consult your disciplinary procedure and contract of employment to ascertain the provisions regarding an appeal against a dismissal. 

The general position is that the effective date of dismissal will be the date on which the termination is communicated to the employee and not the date on which the employee is informed that an appeal against dismissal has failed. This principle was set down in the case of Savage v J. Sainsbury Ltd [1980] IRLR 109. That case was appealed to the Court of Appeal who held that a contract of employment ends on the date of the original decision. If the appeal is successful the Court determined that the contract can be ‘saved’. The Court of Appeal put it as follows:

“the contract of employment is saved if the appeal succeeds, because the employee is reinstated with full back-pay. But if the appeal fails, then the inevitable result is that the employee is not only deprived of his right to work …. but also of his right to remuneration from that date. If he has had no right to work after the 1st January and no right to be paid after the 1st January, the contract of employment must have been determined as from the 1st January.”

This principle was reaffirmed in Roberts v Westcoast Trains Ltd [2004] IRLR 788.

However, if your organisation’s contract of employment or disciplinary procedure provides that termination does not take effect until after the conclusion of the appeal process then you will need to ensure that employment remains in place pending appeal. To do otherwise leaves you at risk of the employee instituting injunctive proceedings and/or a breach of contract claim. 

This was the case in Wallace v. Irish Aviation Authority 2012 [IEHC] 178. In this case the Plaintiff, Ms. Wallace, worked as an Aviation Officer with the Defendant organisation. She was subjected to disciplinary action in the course of her employment and dismissal was recommended for her. She appealed that decision in line with her entitlement pursuant to her contract of employment. Pending that appeal her employer placed her on a period of paid suspension and she brought an application for interlocutory relief restraining her employer from continuing that suspension. The disciplinary procedure in that case stated in writing that the disciplinary sanction would not take effect pending the outcome of the appeal process. Even though suspension was not the sanction which the employer had recommended in the Wallace case, Hogan J felt it was a disciplinary action and therefore granted the Plaintiff interlocutory relief. 


Conclusion

It is important to ensure that your contract and policy documents reflect the position on appeal. If it is your organisation’s policy to delay the implementation of a dismissal pending appeal, then this needs to be specified in writing. Otherwise, the general position applies which is that the effective date of dismissal will be the date on which the termination is communicated to the employee and not the date on which the employee is informed that an appeal against dismissal has failed. Obviously if the dismissal is overturned on appeal, then the employee is reinstated and back-paid so it’s as if the dismissal never occurred.

For the avoidance of any doubt, it is prudent that your organisation’s contract and policy documentation makes the position clear. This should then be restated in the letter of termination so that the employee is under no illusion with regard to continued employment pending appeal.