Workplace Investigation and Disciplinary-the Danger of an Overemphasis on Looking for Imperfections in the Procedure

workplace disciplinary procedure

Dmitri was suspended from work for allegedly assaulting a colleague. Susan was suspended on pay while an investigation was being carried out into approximately half a dozen allegations of misconduct.

When they came to me for advice they were very much focused on the procedure adopted by the employer to date. Too focused, in my view.

Let me explain. They had done a bit of research online about disciplinary procedures in the workplace, the entitlement of the employee to fair procedures and natural justice, the importance of any investigation and disciplinary procedure being carried out fairly, and so on.

That’s fair enough.

But it is an easy mistake to get preoccupied with employment rights. These rights may stem from the constitution or statute or the contract of employment.

But remember the employer, too, has rights. And the right to investigate alleged wrongdoing in the workplace is one of them.

Now, Dmitri and Susan in their initial discussion with me were focused on seeking any imperfection or infirmity in how the employer had acted up to that point. I believe that was a mistake and they might have been better advised to address the substantive allegations against them.

But you must not ignore the substantive allegation against you and you must spend as much time addressing this as seeking imperfections in the procedure adopted by the employer.

Because they were so focused on finding imperfections in how the employer had acted in applying the procedure that they had overlooked the allegations against them.

Even though they have rights to fair procedures in respect of the application of the disciplinary procedure I do not believe perfection is required of the employer. Sure, it must be sound and fair and transparent and in accordance with the procedures set out in the workplace.

But the absence of perfection, or a small infirmity in the steps taken, may not be enough for an employee to ground a claim for unfair dismissal on the basis that the procedure lacked natural justice if the allegation is a serious one such as assaulting a colleague to telling a customer to stop “wrecking my head” and “do one”.

Takeaway

My advice is if you are facing serious allegations like Dmitri and Susan is not to get too preoccupied looking for flaws in the procedure adopted to the detriment of addressing the serious allegation against you.

Because employers, especially small ones with finite resources, will not be held to a level of perfection in enforcing discipline in the workplace.

Yes, you are entitled to fair procedures; yes, you are entitled to natural justice; yes, you are entitled to fair play.

The Small Employer Under Pressure from a Surprising Source

Peter and Betty have a small business and never expected this. But they feel stressed and pressurised from a most unexpected source: their new employee.

They have been in business for 17 years and never had any problems with staff.

Yes, there was the occasional, infrequent dispute or argument but nothing that amounted to anything serious. They were never sued or had to face any claim from an employee-in fact, no threats were made against them, not even in the heat of the moment.

But all that changed when they took John on. John is in the job about 10 months now and his mood swings and changeable humour from one day to the next is worrying.

That’s not the biggest concern, however.

John, from an early stage in his employment, was quick to tell Peter and Betty what his employment rights were and how he could bring claims against them for all types of breach. He told them about working time records, rest breaks, public holidays, the WRC, NERA, the Labour Court, the minimum wage, his entitlement to a written contract-the list seems endless.

Peter and Betty never had to face this before and the frequent mention of the Workplace Relations Commission has them tremendously strained and anxious.

The biggest problem in all this, however, is the uncertainty and not knowing what the true situation is.

Is John right and are they ignorant, law breaking, exploitative employers, what can happen next, is John lying or exaggerating, what is the worst outcome, and most importantly: what can they do now.

Peter and Betty are typical of many small business owners up and down the island of Ireland who have successfully and happily employed many people down through the years without any problems or difficulty. They have never had to concern themselves too much with employment law and stuff like that because there were never any issues.

Their accountant made the necessary returns every month or every year and paid the appropriate tax, prsi, universal social charge, and whatever else the government decided had to be paid.

But this constant, low level hostility and implied sense of threat from an employee who is only in the workplace for 10 months and who they look after well is getting to them. It’s even putting a strain on their relationship.

What Peter and Betty needed was a bit of advice and some clarity about their obligations and entitlements and what options were open to them now. How, or was, the relationship with John going to improve in the years ahead; were they looking at this problem in perpetuity with no say as to who they could and could not employ; could they terminate now;  if so, on what grounds; are they open to a claim for redundancy; can John bring a claim for unfair or constructive dismissal.

If you are a small employer in a similar situation you may be surprised to find that your situation is not as bleak or oppressive as you think. But it will depend on the particular circumstances and a large factor in this type of situation is how long the employee has been in the employment.

Other questions to look at: is there a written contract, is there a probation period, has the employee obtained 12 months’ service? These are critical questions.

One of the biggest causes of stress is the fear of the unknown; any small employer can remove this fear by getting advice from a professional.

Getting advice from a professional will cost a few bob.

But not getting advice or getting it from an amateur is likely to cost more.

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.

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.

Employers: Don’t Make the Mistake of Looking for ‘Bullet Proof’ Contracts or Waivers

Mick came in to see me last week. He had had enough.

‘Enough is enough’, he barked.

Mick is a small employer. Old fashioned, grim, swarthy.

He had enough of this employment law nonsense. He was looking for a way to ensure that his workers would stop giving him grief, and ‘cop themselves on’.

Or, as he put it, ‘show up and shut up and do what they’re told’.

‘Now? Now, they’re always going on in such a bloody tiresome way about their rights..paternity this, maternity that, force majeure, bereavement leave, unfair dismissal, bullying, harassment, health and safety. In the good old days if a lad came and complained about bullying I’d tell him to grow a pair of balls and sort it out in five minutes at the back of the shed..’

‘Mick, my friend, take a seat.That ship has sailed’, I said.

When he calmed down Mick made it clear he wanted two things:

  1. A “bullet proof” contract of employment
  2. A form or agreement that an employee would sign when he was leaving promising he would not bring any claims against Mick after he was gone.

Bullet Proof Contract

What Mick wanted was a contract that set out exactly what the employee could and couldn’t do, and it was heavily loaded in favour of Mick and the needs of his business.

I had to explain to him that I could help him with that but it would not be bulletproof. I told him that regardless of how he and a future employee might negotiate an agreement, and even if the employee went ahead and signed it, the employee still had legal rights and entitlements, no matter how one sided it was drafted.

Therefore, no matter what was put in the contract, no matter how agreeable (or naive) the new employee was, no matter how keen he was to work for Mick (or anyone), the new employee had statutory rights.

These rights are set out in the statute books in pieces of legislation such as the Unfair Dismissal Acts or the Organisation of Working Time Act or the Redundancy legislation or the Payment of Wages acts.

He also had rights to fair play in raising grievances in the workplace or how any disciplinary procedure might be carried out, I told him. These were set out in statutory instruments. I could see Mick visibly wincing, and the blood draining from his face.

On top of that, I had to tell Mick that employees had rights arising from EU law, common law, and the constitution. I could see Mick visibly perking up when I mentioned “Bunreacht na hÉireann”.

Nevertheless, I had to advise Mick that no matter what way the contract was drafted the employee had protections and rights which were imposed on the employment relationship, whether he liked it or not and whether the employee was agreeable or not.

And he had to just get over it and perhaps improve his relationship with his staff, starting with how he viewed them.

A Leaving the Employment Indemnity/Waiver

He also wanted some sort of a one page, straightforward, easy to understand form which would do two things:

  • Prevent the employee from working for any competitors or starting his own business
  • Promise not to bring any claims against Mick.

I explained to Mick that if he wanted to try to prevent former employees from working for competitors or starting their own business nearby or stealing Mick’s customers or staff he needed to provide for this in the contract of employment. He would need a restrictive covenant which would only be enforceable if it was reasonable.

I had to break the news to him that looking for an employee to sign such a form when he was leaving Mick was too late, and akin to bolting a stable door when the horse was long gone.

As for promising not to bring any claims against Mick, I asked Mick to think about this: ‘why would an employee do that? Why would he give up those rights without some incentive? Would he not be asking, if presented with such a form, what was in it for him?’

In short, if he wanted the employee to waive his rights in respect of claims arising from the employment he’s better get out the cheque book and provide an incentive. Because, otherwise, it would be an act of folly for an employee to sign such a form.

And even if he did it could be overturned and set aside later on as he could claim that he did not know what he was signing and had no legal advice at the time.

Conclusion

Mick learned that the answer to his staff problems was in improving his attitude and approach to his employees. This would lead to a better atmosphere in the workplace, lads taking more care with his equipment and vehicles, a better working relationship, and less chance of claims against him.

And if there were claims against him?

Provided Mick did not ride roughshod over their rights, give them contracts of employment that were fair and lawful, maybe have a staff handbook in the workplace, too, to deal with discipline and grievances and bullying, he would have a far better chance of successfully defending any claims that arose.

Or even make it less likely that claims would be brought once the employee learned the chances of success were not great.