Background:
The Complainant, who had special needs that the organisation was aware of, argued that these needs and mitigating factors contributed significantly to her uncharacteristic behaviour. Namely, theft from a cloakroom. The central issue was not whether a sanction was necessary but whether Dismissal, a severe penalty, was proportionately and reasonably imposed. It was emphasised that while employers have discretion within a band of reasonableness, this discretion must not breach the principle of proportionality. The employer was required to explain to the Tribunal why Dismissal was chosen over other options, fully considering its severe impact on the Complainant's life. The Complainant acknowledged her wrongdoing but contested the fairness and proportionality of the sanction, given her special needs. She highlighted that her relocation to a different centre had been disruptive, negatively affecting her mental health, and that the employer’s failure to address this exacerbated her situation, providing context for her actions.

The Respondent’s position was that theft, which undermined the essential trust in an employment relationship, cannot be condoned. They stated the Complainant’s actions irreparably damaged the trust and confidence necessary for the employment contract to continue. Further, the matter was thoroughly and fairly investigated, with the Union Representative acknowledging the fairness of the process; in addition, the appeal also fully considered the issues at hand. They claimed they acted within the band of reasonableness, and while the Tribunal might have chosen differently, the sanction was reasonable given the circumstances.

Finding:
The Adjudicating Officer noted that the Complainant, employed since August 20, 1996, did not wish to return to her employer; also, acknowledged attempting to steal from colleagues by going through their belongings in the cloakroom. The Adjudicating Officer found mitigating factors included her intellectual understanding, mental health at the time, and being outside her usual work environment. Prior appeals to management indicated that the Complainant was struggling with the transition to a new role. Whereas, the Respondent, whose mission is to assist individuals with disabilities, failed to present evidence from those directly involved in the dismissal decision, compromising their case. Although the process appeared fair, the absence of decision-makers, who had the onus to prove fairness, rendered the dismissal technically unfair. The Complainant accepted that a sanction was warranted but argued that dismissal was disproportionate, especially considering her disability and long, unblemished work history. Further, while theft typically justifies dismissal, the Tribunal found that reengagement was not viable due to the breach of trust. However, given the circumstances and the Respondent's failure to substantiate the decision, the dismissal was deemed unfair. Considering the Complainant's conduct and the mitigating factors, a compensation of €2,500 was awarded.

Practical Guidance for Employers:
Employers should take the following steps to ensure that disciplinary actions, particularly dismissals, are legally sound and justifiable:

• Thorough Documentation of Decision-Making: Employers must ensure that those directly involved in the decision to dismiss are available to provide testimony and evidence during any subsequent legal proceedings. This includes documenting the reasoning behind the decision, considering all mitigating factors, and explaining why dismissal was chosen over less severe sanctions.
• Consideration of Mitigating Factors: When dealing with cases involving employees with disabilities or other special circumstances, employers should take extra care to consider how these factors may have influenced the employee's behaviour. This should be documented in the decision-making process, demonstrating a balanced consideration of the employee's situation.
• Fair and Transparent Process: Employers should ensure that the disciplinary process is transparent, with clear communication to the employee about the allegations, the evidence, and the reasoning for any decisions made. All steps of the investigation should be meticulously recorded.
• Involvement of Relevant Parties: Decision-makers involved in the disciplinary action must be present at hearings and able to justify their decisions. Their absence could lead to a finding of unfair dismissal, even if the process appears fair otherwise.
• Proportionality in Sanctions: Employers should apply the principle of proportionality, particularly in cases involving long-serving employees with a previously unblemished record. Dismissal should be carefully weighed against other possible sanctions, with a clear rationale for why less severe measures are not appropriate.
• Training for Management: Provide training for managers on how to handle disciplinary actions, particularly in complex cases involving disabilities or mental health issues. This can prevent procedural errors that may lead to findings of unfair dismissal.

 The full case can be found here:
https://www.workplacerelations.ie/en/cases/2024/july/adj-00049146.html