Court of Appeal Clarifies the Legal Right to Representation in Disciplinary Proceedings in the Workplace

irish rail v barry mckelvey

A decision delivered by the Court of Appeal at the end of October 2018 throws further light on this question of the right to legal representation in the workplace during disciplinary hearings.

This issue was thrown into some degree of confusion by what appeared to be inconsistent High Court decisions in the cases of Lyons v Longford Westmeath Education and Training Board, E.G. v The Society of Actuaries in Ireland, and N.M. v Limerick and Clare Education and Training Board. (You can read about these 3 High Court decisions here).

Iarnród Éireann / Irish Rail v Barry McKelvey

In this case Mr. McKelvey, an Irish rail inspector was subjected to a disciplinary procedure in his workplace into an allegation of misuse of company issued fuel cards and alleged theft of fuel which led to “significant financial loss” for the employer. Mr. McKelvey was denied the right to legal representation at the disciplinary hearing. Mr. McKelvey went to the High Court about this issue and sought to have the disciplinary hearing halted.

The High Court decided that he was denied fair procedure and constitutional/natural justice by reason of this refusal by Iarnród Éireann, even though he had the assistance of an experienced trade union official.

The High Court halted the disciplinary proceeding against Mr. McKelvey as it held that he was entitled to legal representation. The High Court arrived at this decision due to a number of factors including:

  • The impact on his reputation and future employment prospects
  • The complexity of the case
  • The fact that issues of law would probably arise in the proceeding

The High Court decision to halt the disciplinary proceeding was appealed to the Court of Appeal by Irish Rail.

Court of Appeal

The Court of Appeal agreed with the High Court in identifying the factors that a Court should look at when deciding this issue.

It disagreed with the High Court’s decision in the case of Mr. McKelvey, however, and held that the High Court had misapplied the factors to the circumstances of the case.

The Court of Appeal overturned the decision of the High Court and held that legal representation should only be granted in the most exceptional of circumstances. It also held that natural justice and fair procedures could be applied without the need for a lawyer and the help of an experienced trade union representative was sufficient stating, inter alia,

“While it is true to say that Mr McKelvey faces a disciplinary inquiry which could lead to his dismissal and which has the further potential to impact on his future employment prospects and his reputation, in this regard he is no different to a very substantial percentage of employees facing allegations of misconduct in the workplace. In my view, the allegation of misconduct made against Mr McKelvey is a straightforward one and I am not satisfied that he has identified any factual or legal complexities that may arise that he should not be in position to deal with adequately with the assistance of [his trade union representative].”

The Court of Appeal also made the point that workplace disciplinary investigations and hearings should not be directly compared with investigations and hearings carried out by professional regulatory bodies such as the Medical Council or other professional regulatory bodies.

The Court of Appeal did not clarify definitively, however, the question of the right to cross examine witnesses in a disciplinary hearing as Irish Rail had allowed this as part of its procedure and the question did not have to be addressed in the Court of Appeal.

Nevertheless, it is advisable that this right is afforded to employees involved in a disciplinary hearing even though there appears remain a difference of opinion amongst lawyers on this point.

The Court of appeal also left the door open to reapply to Mr. McKelvey if a complex issue of law arose in the process.

You can read the full decision of this Court of Appeal case here: Iarnród Éireann/Irish Rail and Barry McKelvey.

The Labour Court Recommends €90,000 Compensation In Unfair Dismissal Claim Against Park Hotel

park hotel unfair dismissal

I have written a number of blog posts about probation and the options open to an employee who has been dismissed whilst on probation.

The general position is that you cannot bring a claim for unfair dismissal under the unfair dismissal acts for section 2(1) Unfair Dismissals Act, 1977 sets out a number of categories of employees who are excluded from the protection of the act as follows:

2.—(1) This Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,

You will note that the act does not apply to employees with less than 12 months’ continuous service. Accordingly if you are fired with less than 12 months’ service you can almost alwasy forget about the unfair dismissals act, 1977.

Moreover, section 3 of the same act rules out employees on probation for it states:

3.—(1) This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training—
(a) if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract, or
(b) if his contract of employment was made before the commencement of this Act and was not in writing and the duration of the probation or training is 1 year or less.
(2) This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is undergoing training for the purpose of becoming qualified or registered, as the case may be, as a nurse, pharmacist, health inspector, medical laboratory technician, occupational therapist, physiotherapist, speech therapist, radiographer or social worker.

Recently, however, a case was brought by a former manager of the Park Hotel in Kenmare to the Labour Court. You may have heard of this hotel as it is owned and run by the high profile Brennan brothers who present that television programme where they go around telling other small business owners how to develop their small hotels or bed and breakfast business.

In this case, however, the general manager of the Park Hotel was employed on a 36 month contract and was dismissed during the probationary period without fair procedures.

Specifically the man was not told of any performance issues, no warning was given that his job may be at risk, no opportunity for representation was afforded to him, he was not given any reasons for the dismissal, and he was not given a right to reply.

The hotel relied on the contract of employment which clearly stated that either party terminate the contract by giving written notice.

How can the employee bring this claim to the Labour Court if the Unfair Dismissals Act, 1977 excludes employees who have less than 12 months continuous service?

Labour Court and Industrial Relations Acts

The employee can bring a claim for unfair dismissal to the Labour Court under the Industrial Relations Act, 1969. This is precisely what happened in this case involving Francis Brennan’s Park Hotel and the Labour Court recognised that employer was entitled to dismiss the employee during the probationary period.

The Labour Court found, however, that the employee is still entitled to fair procedures and natural justice and in this case found that this did not occur.

Accordingly, the Labour Court recommended that the employer pay €90,000 in compensation for the unfair dismissal. Note that this is a ‘recommendation’ and is not legally enforceable.

Why would an employee go through this procedure and perhaps incur legal costs if he only ended up with an unenforceable recommendation which the employer can ignore?

Only the employee can answer that question but he may have hoped that the publicity surrounding the case may have persuaded the employer to settle his claim to avoid reputational damage to the hotel.

He may also have hoped that the employer would accept the moral or persuasive authority of the Labour Court’s recommendation and pay out.

Or he may have taken the case on a point of principle and to restore his good name and professional reputation if he felt that they were damaged as a result of the termination.

Conclusion

If you are an employer you may or may not, depending on your business, be concerned about reputational damage or the likelihood of industrial relations action on foot of a Labour Court recommendation which you may intend ignoring.

If you are concerned then you should ensure fair procedures and natural justice in the termination of any employee’s employment, even those on probation.

If you are an employee with less than 12 months service you may consider going this ‘industrial relations act’ route to the Labour Court; but you may end up with an unenforceable recommendation.

Read the full decision of this case here.

Legal Representation in Disciplinary Proceedings in the Workplace-October, 2018 WRC Decision Clarifies

legal representation disciplinary proceedings

Are you entitled to legal representation if you are involved in a disciplinary proceeding in your workplace?

If you are an employer how do you respond to requests from an employee who is the subject of a disciplinary or investigation procedure to be represented by a solicitor or barrister?

Last year I wrote about three High Court cases which looked at this issue and the whole area of fair procedures in investigations and disciplinary proceedings.

These cases were Lyons v Longford Westmeath Education and Training Board, E.G. v The Society of Actuaries in Ireland, and N.M. v Limerick and Clare Education and Training Board.

And there appeared to be a certain degree of inconsistency in these cases which left a feeling of uncertainty for employers and employees alike. That blog post is worth a read, however, as it will give you a good idea of the factors and issues which the Court will look at when addressing this question.

WRC Decision

More recently the WRC has had to determine this issue in A Security Officer v A Security Company (ADJ-00011096). In this case the security officer brought a claim for unfair dismissal.

He partially succeeded with his claim insofar as the Adjudication Officer, Catherine Byrne, held even though there were substantial grounds for the dismissal-gross misconduct constituting the failure to carry out a reasonable instruction and behaving in an aggressive, demanding and disrespectful manner to the company’s managers-he was not actually dismissed for these substantial reasons.

Instead he was dismissed without warning that his refusal to work a particular roster would lead to his dismissal.

Accordingly, it was held the dismissal procedure was unfair and he won his case for this reason; however, the adjudicator held that he contributed significantly (75%) to his own dismissal and, having regard for the fact that the had obtained new employment quickly, he was awarded only 1 week’s pay of €422.50 by way of compensation.

In the course of the hearing, however, the adjudicator was asked by the security officer’s representative to hold that the fact that he was not was not given the right to be represented by a solicitor or a member of the Citizens Information Service in meetings with the employer meant that the disciplinary process was flawed.

The adjudicator did not agree with this argument and also suggested that if he had a representative such as a work colleague or union representative he could have been steered in a calmer direction.

The adjudicator decided that “I do not find that any unfairness resulted from the company’s policy to allow him to be represented by a colleague or a union official, and not by a solicitor or an advisor from the Citizens Information Centre.”

Supreme Court Decision: Alan Burns and Another v The Governor of Castlerea Prison and Another

This Supreme Court decision is a vital one to look at when addressing these issues.

In a 2009 decision the Supreme Court set out 6 factors that should be considered whether a solicitor or barrister should be allowed to allow a fair hearing:

  1. The seriousness of the charge and of the potential penalty.
  2. Whether any points of law are likely to arise.
  3. The capacity of a particular prisoner to present his own case.
  4. Procedural difficulty.
  5. The need for reasonable speed in making the adjudication, that
    being an important consideration.
  6. The need for fairness as between prisoners and as between prisoners and prison officers.

Significantly, the Supreme Court also held “I would reiterate that legal representation should be the exception rather than the rule.”

Conclusion

Legal representation in a disciplinary investigation or hearing should be the exception, not the rule, and there is no automatic right to be represented by a legal professional.

The employer can, however, allow a legal professional for tactical reasons-that is, to ensure the later argument of lack of fair procedures and constitutional justice is holed below the waterline.

Adverse Publicity in Employment Cases-Employees, Don’t Make This Mistake

Are you an employee who is thinking about bringing a claim against your employer?

Or maybe you have already brought a claim?

I meet employees frequently and they may come to me before, during, or after a dispute with their employer.

And I see them making many mistakes.

These mistakes can range from bringing the wrong claim to suing the wrong entity as employer to missing the time limit to bring the claim that is misconceived or badly founded from the outset.

One mistake I frequently encounter, though, is the employee’s insistence that the employer will probably settle or roll over by reason of his fear of the ‘adverse publicity’ which the case is bound to generate.

This is a serious mistake because the employee places far too much importance on the threat of ‘bad publicity’.

It is an understandable mistake to make because the employee has a problem that has caused her great anxiety and stress and it has been a large part of her every day life for a considerable amount of time.

And now she is going to finally take action and remedy the wrong done to her.

But the wider world at large has their own individual, personal problems.

They may be big or small ranging from paying the mortgage to buying food or other daily essentials to avoiding the sack to dodging redundancy to the health and welfare of their loved ones to the kids getting on satisfactorily in school to getting good exam results.

And so on.

The list goes on and on. Some people would just call it ‘life’.

These problems may understandably detract from them noticing whether you were treated unlawfully in work or not, and how your claim goes at the WRC.

Quite frankly, other people have their own issues and may not have too much time for your case against your employer. It may not even register on their radar.

Or if it does it is soon forgotten. Tomorrow’s fish and chips wrapper.

For this reason your employer may not have as much to fear on the publicity front as you would expect.

Workplace Relations Commission Claims are Private

Virtually all work related claims have to first be brought to the Workplace Relations Commission (WRC). However, the Workplace Relations Act at section 41 (13) states:

(13) Proceedings under this section before an adjudication officer shall be conducted otherwise than in public.

This means (virtually) all claims are held in private, not public.

Thus, the chances of a tremendous amount of bad publicity arising from the case are minimised.

And to make matters worse from a publicity perspective all decisions of the Workplace Relations Commission when published on their website are anonymised-that is, the identity of the parties is not disclosed and the decisions will have titles like ‘A Worker Versus a Retail Company’ or other nondescript, anonymous titles.

Conclusion

If you bring an employment related claim against your employer you need to weigh up carefully the pros and cons of your case, the potential outcomes, and the cost. These are the factors that you should place most emphasis on when arriving at a decision.

If you lose your case and you appeal to the Labour Court your case will be held ‘in public’ and there may be greater scope to wave the ‘adverse publicity’ stick as a weapon against your employer.

But in looking at your options in a WRC claim my advice is not to overegg the pudding in relation to idea that the employer will be fearful of the tremendous amount of bad publicity surrounding your case.

Because the reality is quite different, apart from some exceptional cases which hit the headlines for obvious reasons unique to that particular case.

Discriminatory Dismissal Leads to €46,000 Compensation Award

workplace discrimination ireland

Could you afford an employment law award of €46,000 against you? Let’s face it you would be hard pressed to just take it on the chin and chalk it down to experience.

But that is what you could be facing if you are at the losing end of a WRC decision as occurred recently in a case involving a claim founded on discrimination.

An office manager in a software firm was awarded €46,000 in compensation by the WRC for her discriminatory dismissal.

The employee who brought the claim had an incurable degenerative disease (fibromyalgia) and was dismissed whilst on sick leave. This disease caused her muscle pain, fatigue, sleep and memory problems.

The €46,000 award comprised 2 parts:

  1. €23,000 in respect of the actual discriminatory dismissal and
  2. €23,000 for the failure of the employer to make reasonable accommodation in allowing the employee to continue in her job.

The award took into account the way the employer dismissed the employee: by telephone.

Background

The background to the case is the employee was employed since 2015 and went on certified sick leave in May 2017; in November 2017 she was dismissed by conference call. Whilst she was out sick her occupational therapist made a number of recommendations as to how she could be accommodated in the workplace including:

  • Working from home
  • More rest breaks
  • Flexible working rosters
  • A temporary reduction in working hours.

The employee was then involved in a car accident in August 2017 and she was not expected to return to work until January 2018 as she required a spinal implant procedure.

However, in November 2017 she was told by phone that she was being given one month’s notice of dismissal but would be paid in lieu of notice and her termination was, therefore, with immediate effect. The employer mentioned incapacity and “the problems her absenteeism were causing.”

In her evidence at the WRC the employee told that she was not given any warning of her potential termination nor was she given the chance to appeal the decision. The employee was on certified sick leave at the time and was taken aback at the decision which had a significant impact on her from a personal and financial perspective.

She also spoke of the pride she took in being able to work despite her difficulties and she was anxious to show that sufferers from such diseases/disabilities can do things and take part in the workplace.

The employer denied it failed to offer reasonable accommodation and stated it could not hold her position open indefinitely.

Warning for employers

This case is further evidence, if any were needed, that employers need to be very careful about how they deal with their employees, especially when it comes to terminating employment on the grounds of incapacity.

Employers are perfectly entitled to terminate an employee’s job on the grounds of incapacity but only after looking carefully at the options, obtaining updated medical evidence, warning the employee his/her job is at risk of termination, and giving them the opportunity to appeal the decision.

Otherwise, the employer runs the risk of a discrimination-based claim either on the grounds of discriminatory dismissal or straightforward discrimination or failure to make reasonable accommodation for the employee’s continued employment.