Dismissal Case

In a recent dismissal case, an employee was awarded €32,000 by the Labour Court due to a flawed procedure. Read on to learn about the case and the key takeaways for employers.

In the case of healthcare worker V Employer (ADJ-00014409 / CA-00018762-001), the complainant was dismissed in January 2018 as a healthcare support worker after 5 years employment. The role of the employee was to provide support services for adults and children with a learning disability, mental ill health, acquired brain injury and for older people, including people with dementia. The complainant had deviated from the company’s care plan when he allowed the client out of his line of sight and the Respondent therefore had lost all trust and confidence in the Complainant.

The Respondent was only informed of the incident seven weeks after the event and the Complainant had worked without issue during that period. Nevertheless, the Respondent found it necessary to suspend the Complainant due to potential risk that he may present to the client.

An investigation and disciplinary hearing took place, however it only comprised of interviewing the Complainant’s involvement into the incident. The reason put forward was that the other employee involved in the incident was the person who reported it, albeit seven weeks later. The Respondent dismissed the employee and submitted that the dismissal was well within the band of reasonableness in this case.  The Labour Court was critical of blatant flaws in the procedure followed by the Respondent, in particular:

• Not requiring the employee who made the allegation to submit it in writing.
• Not providing the Complainant with the allegation in writing as required by the Respondent’s own disciplinary procedure (The right to know the allegation).
• The excessive participation by Human Resources which removed the independence of the investigator and the person conducting the disciplinary hearing. (HR had summarised the allegation, provided a list of people HR had decided should be interviewed as relevant witnesses and drafted the script for the disciplinary hearing in advance of the person being appointed to hear it).
• There was a second employee involved on the day of the alleged incident who was not subjected to an investigation or disciplinary process, which was the same as the Complainant.

The Labour Court found that there were such significant flaws in the procedure that the decision to dismiss was not within the band of reasonableness. In particular, the decision by the Respondent to treat two workers involved in the incident in such a disparate manner.

The Court concluded that that the dismissal was unfair having considered the submissions of both parties. The Court awarded the Complainant compensation of €31,868.37, an increase of over €10,000 from the award of the WRC. This included the mitigation of loss by the Complainant and there was minimum contribution by the Complainant to his dismissal as his co-worker was not even investigated in respect of the same incident.

Employers should ensure that when investigating an incident, all parties involved are subjected to an investigation. Employers should also be mindful of the level of HR or another person’s involvement in the processes where it is being conducted by a separate person. Additionally, it is recommended that allegations are furnished in writing from the person making such allegations before the commencement of an investigation.

If your business is conducting a grievance or disciplinary issue please contact Emma on emma.crowley@sfa.ie or visit our website at www.sfa.ie