Are you an employer? How would you feel about having to pay a dismissed employee’s salary from the date of dismissal to the date of the hearing? Or even to the date of the decision of the adjudication officer?
And how would you feel about accepting the employee back into his old job?
That is what happened in the case involving a part time school bus driver (ADJ-00013201 An Employee v a Bus Company).
In this case the employee who was dismissed for alleged theft not only won his claim for unfair dismissal, but it was ordered by the adjudicator that he be reinstated in his previous job and paid all his salary from the time of dismissal (August 2017).
The back story to the case is the part time bus driver was accused of theft in the workplace; he allegedly removed used wheel rims from the employer’s premises. The employee’s position was that he had permission from the Garage Foreman.
The employer’s services manager carried out an investigation and following this investigation the employee received a letter telling him that his employment was being terminated.
The Employee’s Case
The employee’s case was the investigation and disciplinary parts of the procedure which led to his dismissal were carried out by the same person, the Services Manager, and this rendered the termination unfair by reason of the absence of fair procedures-that is, the same person carried out the investigation and disciplinary parts of the process.
The employee also relied on the letter he received which stated that “following an investigation” he was being terminated as evidence of the 2 stage (investigation and disciplinary) procedure.
He also argued that his appeal was never heard.
The Employer’s Case
The employer’s case was that the employee was brought to a disciplinary meeting concerning the alleged theft of property-in excess of 20 wheel rims-and admitted taking the property but claimed to have permission. The employer found that this was not the case and decided he would be dismissed within 7 days and given the right to appeal.
The employer did concede that his appeal had not been heard up to the day of the WRC hearing due to the large volume of appeals to be dealt with by the appeals board and the illness of some members.
The Adjudicator’s Decision
The Workplace Relations Commission Adjudicator stated that his job was not to assess the innocence or guilt of the employee in respect of any allegations against him; the job of the adjudicator was to decide whether the decision of the employer was reasonable. In this context he stated the employer must prove the dismissal was fair.
In this regard he held that the involvement of the Services Manager in both the investigation stage and disciplinary/decision making stage of the procedure was lacking in fair procedures.
“Having purportedly conducted a preliminary investigation, I find it inappropriate that the Services Manager would have then participated as the disciplining officer, on whose decision the Complainant was dismissed.”
He also referred to a Labour Court finding on this issue of separating the investigative stage from the decision making stage in the case Joseph Brennan Bakeries v Rogers (UDD1821). In that case the Labour Court held:
“The Court considers that the multiplicity of roles undertaken by TG [ the General Manager] in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw the procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that the within enterprise is of a nature which afforded the Respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by selection of available management level personnel to carry out the different stages of the procedure.”
He also found that there was a lack of objectivity and pre-judgment as he accepted the statement of the employee as follows:
“According to the Complainant, the Services manager stated, inter alia, that he (the Complainant) had been “caught stealing rims” and that “they are looking for your head upstairs”.”
The adjudicator also found that there was no written note of he investigation carried out and none had been given to the employee prior to the disciplinary hearing. This was fundamentally lacking in fair procedures.
In summary, the Adjudicator found:
“Taking all of the issues into consideration, I find there to be a distinct lack of objectivity and independence in the carrying out of the investigation and disciplinary processes which ultimately led to the Complainant’s dismissal. In this regard, I find that, in the circumstances, the Respondent’s decision to dismiss the Complainant must be considered as unfair.
This view is further undermined by the fact that the Complainant’s appeal of the dismissal decision has not been heard. While I note the rationale presented by the Respondent in relation to the delays with regard to the conducting of the Appeal Hearing, I find that it has compounded the shortcomings of the disciplinary process up to that point.
I find that the Respondent’s decision to dismiss the Complainant is unfair. In that context and taking into consideration the fact that an Appeal Hearing has not been conducted, I direct that the Complainant be reinstated, with effect from the date of dismissal, 25 August 2017, with full salary retrospection to apply.”
Note: this hearing was held on the 24th July, 2018 and the decision is dated 28th December, 2018. I do not know whether the salary retrospection is from the day of the hearing or the day of the decision. Nor do I know whether the employer has appealed to the Labour Court.