Grievance and Disciplinary Procedures

Fair Procedures - Actions of Employers

In Stephen Bourke v Complex Productions Ltd (ADJ-00027853), the complainant employee succinctly set-out the expectation for due process and fair procedure during an investigation or disciplinary process.

Referring to the decision of the Labour Court in the case of Sloneczko Limited, trading as Breadski Brothers and Agnieszka Kopacz, UDD 1933, the complainant employee said that the Labour Court has determined that the fundamental requirements of fair procedures are demonstrated by certain actions of the employer:

• The requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process;

•  The requirement that an employer who has published a disciplinary procedure should follow the procedures scrupulously when conducting a disciplinary process; and,

•  In the event that an allegation is upheld, the sanction must be proportionate.

The complainant also referred to the Code of Practice on Grievance and Disciplinary Procedures published in Statutory Instrument 146 of 2000 which provides that an employee has a right to a fair an impartial investigation, taking account of representations made by them or on their behalf. 

Indefinite Suspension

In Excavator Driver v Construction Company (ADJ-00027194), the issue of placing an employee on indefinite suspension was discussed.

The Adjudication Officer noted the High Court in the case of Bank of Ireland v Reilly, IEHC 241 (2015) in which the following comments were made regarding placing an employee on suspension:

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing……. Thus, even a holding suspension ought not to be taken lightly and only after a full consideration of the necessity for it pending a full investigation of the conduct in question.”

The Adjudication Officer went on to note that "in the matter before me the complainant was placed on an indefinite suspension as a punitive measure with no mention being made regarding the holding of an investigation. I therefore consider that the action of the respondent in placing the complainant on an indefinite, punitive suspension without pay was procedurally deeply flawed and unreasonable."

In this case, the employee was awarded compensation due to the manner in which he was dismissed.

Right to Legal Representation during Grievance and Disciplinary Process

In A Worker v Manufacturing Plant (ADJ-00015325), the complainant was seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977, arguing he was unfairly dismissed by the respondent employer.

Throughout the disciplinary process, the complainant argued he was entitled to have a lawyer present at any meetings relating to his conduct.

The complainant argued that he was unfairly prejudiced as a consequence of not having a lawyer available, to offer a defence on his behalf.

The Adjudication Officer disagreed, noting:

"I have considered in particular the numerous submissions by the claimant’s representative about being denied legal representation throughout the process and consider that the company’s position is consistent with the principles set out in Irish Rail & Barry McKelvey [2018] IECA 346 where it was made clear that a disciplinary process is not rendered unfair by a refusal to allow an accused employee legal representation in the conduct of the disciplinary hearing or investigation. Such a requirement could only arise in exceptional cases involving issues of factual or legal complexity which could not be adequately addressed without the assistance of a lawyer.  I have concluded that the instant case did not involve issues of factual or legal complexity requiring legal assistance."

It is worth noting a decision cited in the Irish Rail case, that spoke to the issues and considerations to be factored, when debating whether to allow legal representation during a disciplinary process (Regina v. Home Secretary ex parte Tarrant [1985] 1 Q.B. 251), namely:-

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 the employee to present their own case
4. procedural difficulties to be encountered
5. the need for reasonable speed in making the adjudication
6. the need for fairness as between the employer and employee

If an employee is facing a disciplinary sanction, there is nothing to preclude that employee availing of independent legal advice, notwithstanding the inability of an employment solicitor being unable to attend the internal hearings.