Investigating Workplace Complaints in Complaince with Fair Procedures

 “It is the requirement that complaints in the workplace or arising out of the employment relationship need to be investigated in accordance with fair procedures”. Critically discuss this statement having regard to your understanding of what is meant by fair procedures in the workplace.

In this assignment I will begin by researching fair procedures and the history of its emergence in to Irish employment law, the role that it plays in the deciding factors in cases where fair procedures were implemented and cases where fair procedures were failed to be used. The results and outcomes of cases where fair procedures were omitted by the employer have resulted in time consuming and costly outcomes. It is apparent that engaging in the fair procedures processes are essential when dealing with the termination of an employee.  Why fair procedures are integral to every employment contract that any enquiry or determination arising from the employment relationship should be fairly conducted.

Likely the emergence of a general labor law right to fair procedures in Ireland dates back to 1973.  The right to fair proceedings stems from the Irish Constitution and the European Convention on Human Rights and has been developed by the courts through the legal system over many years.  Statutory law and court rulings influence all facets of the employer and employee interaction, through hiring to retirement.  In view of the fact that Ireland is one of the most strictly governed employment law environments in Europe, it is essential that expert legal advice be taken from the beginning to prevent any complications in this area for both the employer and the employee.

The Unfair Dismissals Acts 1977 to 2007 protect practically every employee with at least one year's service within their role.  The two core principles of the legislation are that an employee's dismissal is considered unfair unless there are considerable justification for termination and fair procedures have indeed been carried out prior to dismissal, this is the responsibility of the employer to address this procedure.

The era where employers may ' hire and fire ' instantaneously has ended, and it can now be said that employers have a legal responsibility to treat its workers with due consideration and respect, in regard to individual needs and concerns, and with empathy for their challenges (Redmond M. 2007).  An employee can no longer be viewed as a number without thoughts, feelings and emotions.  It could be argued that the responsibility of caring and ensuring wellbeing is not that of the employer but rather it lies with the employee (Redmond M.2007).

In Ireland it is important to realise that the overwhelming majority of unfair dismissal cases that are brought before the courts are lost, this is not because the employer did not have a good reason for dismissing the employee, it is due to the fact that the employer has failed to follow the correct procedure – fair procedure. Employers must always be informed regarding the current guidelines that should apply to these processes, as well as at the investigation level and the final administrative process where a penalty can be enforced, in other words the employer, to avoid a case being brought against them must be knowledgeable of the most current legislation and act accordingly. 

It is the law that every employee in Ireland, regardless of how incompetent they are or how ineffective or inadequate their performance is; they are entitled to fair practices and fair play on the grounds of natural justice, in other words, if they fear losing their jobs.  Natural justice concepts are fundamental elements of fair trials, these include a fair hearing, a bias free hearing and evidence based.

The value of the equal processes cannot be overlooked in order to directly affect the dismissal of an employee. Once an employer is confident that they have put an employee through a fair investigative process and the employee has been provided with a final written warning, or if an employee has committed an act of gross misconduct, and the employer is now considering termination, it is imperative that the employer follow appropriate procedures so as to avoid finding themselves in court.  Widespread complexities involve failure to comply with legislative requirements or applicable processes and procedures, failure to properly evaluate pertinent information, making inaccuracies, failure to apply fair procedures; and failure to provide reasons.

In the case “Glover v BLN Ltd (1973)” the claimant specifically called for an immediate dismissal on the basis of gross misconduct in his contract of employment. The employee had been dismissed without being informed regarding the nature of the grievance toward him and thus, evidently, without being afforded the opportunity to respond.  It is important to acknowledge that an employer may terminate a contract of employment for good, bad or no reason at all under common law. Nevertheless, if a contract term is breached, the worker can lodge a grievance seeking damages related to the violation of agreement with the civil courts.  Fair procedure was not complied with, thus resulting in penalty for the employer.  Common issues or difficulties include failing to follow legislative requirements or relevant policies and procedures, failing to properly assess relevant information making factual errors, failing to apply fair procedures; and failing to give reasons.

Fair procedures are an adaptable principle and it may differ from situation to situation whatever it necessitates (Cox, A. 2016). Just processes should be implemented very specifically if the judgment violates a person's reputation or indeed the right of a person to earn a living.

To implement the process of fair procedures the manager will send a written invitation to the worker to a formal disciplinary meeting.  The letter should provide a review of why the meeting is being sought and inform the individual that the outcome of the meeting may be termination as a result of the disciplinary meeting.  In the case “G4S Secure Solutions (Ireland) Limited v Eric Onourah (2012)” the European Court of Appeals found a wrongful termination and paid the worker €5000 in damages for fundamental flaws all through the dismissal and appeals proceedings.  In addition, the court questioned the fact that no formal notice was obtained from the employee in relation to the charges brought against him. 

It should be communicated to the employee that at this meeting the individual does have the right to be represented. This representative may take the form of a co-worker or member of the trade union will normally be allowed; however, there is no formal right to legal counsel at these meetings, even though the rulings on the above matters have been inconsistent over the years, each situation would therefore be evaluated on its evidence, taking into consideration the severity of the situation.  In the case of “Burns and Hartigan v Governor of Castlerea Prison (2005)” the High Court found that due to the gravity of the sanction that faced the employees, a legal representative should be allowed at the disciplinary hearings. In this instant, the employees were not faced with dismissal but demotion.

The individual concerned shall be provided with clear and concise details of any claims or grievances.   In the recent case of “Linda Magill v Tomkins Limited (in receivership) t/a The Grand Hotel (2014)” the European Appeals Tribunal awarded the claimant €20,000 for unfair dismissal.  The complainant had been working as a professional housekeeper and, despite not being told of any grievances, she was fired without notice due to a series of allegations against her. The European Court Tribunal stated that she was deprived of fair procedure as she was not furnished with or given details of the allegations against her, therefore, she had no possibility of defending herself.  Alternatively, she was met with the termination of her employment hence also end of her career.

The worker must be offered the opportunity to properly reply to all accusations or complaints and also have their answers thoroughly examined before a termination decision is made. “Audi alteram partem” means “hear the other side too”.  The rule whereby no individual can be judged before being afforded a fair process whereby each individual has the chance to reply to the allegations against them is most widely used.

In the case of “Alana Miley v Up To My Eyes (2014)” the European Appeals Tribunal awarded €2,000 for wrongful termination of an eye lash and eye brow beautician for providing free or reduced rate services to family and acquaintances. While we can argue that it should be common sense that if we steal from our employer that we could possible be met with the termination of our employment, if fair procedures are not implemented the employer although was stolen from also resulted in paying the employee compensation.

A bias-free hearing should be afforded to the employee without determining the overall result. Irish law states that the first is a rule against bias is known as “nemo iudex in causa sua”.  It ensures that no individual can judge a case in where they may have a personal stake or interest.   That is why anyone who is called to perform a report should be excluded from the situation adequately, i.e. they have no personal accountability for the field wherein the event happened.  The extent of autonomy necessary for review team participants may reflect on both the severity of the issue being investigated.  There are two things that employers should address in this regard.  First, if the persons conducting the disciplinary process are capable of doing so, have relevant experience, and second, if the individuals performing the disciplinary proceeding are unbiased and neutral, have no affiliation with the case.  In the case of “David Fox v National Gallery of Ireland (2014)” the European Appeals Tribunal awarded €25,000 for wrongful termination of a senior staff member and trade union leader who had been sacked for gross misconduct as a result of sending  sensitive information regarding his workplace via insecure email, although he was supporting a former work colleague in preparing a request to the Rights Commissioner Service. The Tribunal stated that fair procedures were not followed as the investigation was carried out by the librarian who had no experience in investigations, there were no reasons offered as to why the line manager had not headed the investigation and carried out the process.  This error on the behalf of the employer was a costly mistake.

The punishment levied will remedy the alleged crime or problem in an equitable manner.  In the case of “Michael McCrann v Marks & Spencer Ireland Limited (2014”) the European Court of Appeal granted €13,000 for unfair dismissal to a salesperson with six continuous years of service, he was fired when CCTV revealed him to placing child sales merchandise under non-sales items and then later purchasing them as a gift to a family member.  The tribunal went on to say that while it is evident that the decision-makers are free to consider penalties besides termination in connection with the suspected violation of the order and reservation policy for all goods sold, there was in fact no alternative penalty considered.  The punishment being dismissal was disproportionate to the claimant's alleged actions and was contrary to equity and procedural fairness.  It could be argued that the employer strongly considered this act warranted dismissal, although on the other hand it could be seen as an excuse to rid the company of an unwanted employee. 

The employee should be given the right to appeal a decision if that decision has been made that will terminate the employee’s employment.  In the case “Cathal Crilly v Vinmoe Traders Limited (2014)” the European Appeals Tribunal awarded €4,000 for wrongful dismissal to a carnival worker for gross misconduct, he had been fired for improper use of his mobile phone while operating carnival rides. The claimant claimed that at the beginning of August 2012, he had not been notified with a written warning for using his mobile phone while operating the carnival ride. In February 2013, he was issued a written warning for the same crime. The document notified the plaintiff that the use of telephones while operating equipment was considered to be gross negligence and that it would result in termination if it happened again. After another suspected incident in February 2013, the complainant was invited to a disciplinary inquiry on 15 February 2013 and fired.  The employee requested to see the CCTV footage at the disciplinary hearing, but he was informed that it was not available, nor was the floor manager present (who made the allegation against him) so she could not be questioned by him, therefore not affording him the opportunity to cross examine.  The Court acknowledged that the process involved had procedural deficiencies, which made his termination unfair, and also it additionally questioned the fact that he had not appealed the termination because he had not been informed that he had two weeks to challenge the decision.  The act of using the mobile phone while operating equipment could have resulted in members of the public becoming injured, even so because fair procedures were not followed the employer was penalised.  It appears that the concept of fair procedures in this case have over-ruled the safety of the public.

From completing this assignment, I have identified that the employee appears to be protected by the law where the onus lies with the employer to ensure that the correct fair procedures are followed.  There is not an equal share of responsibility, thus the employer is tasked with the accountability of fair procedure although the employee may have admitted his wrongdoing and in fact may receive a large amount of compensation paid by the employer if as little as one step of fair procedure is overlooked.  On the other hand, the employer cannot dismiss an employee for no apparent reason.  Fair procedures are implemented for the protection of both parties, although reading through cases relating to fair procedure it appears that the law tends to side with the employee.  Transparency and fairness are at the heart of fair procedures.  It is vital that the employer is informed of current legislation and seeks legal advice before any action is taken against an employee.

References

• Redmond M. (2007). Dismissal Law in Ireland, 2nd Edition. Haywards Heath: Tottel Publishing, 2007.
• Cabrelli, D. (2005). The Implied Duty of Mutual Trust and Confidence: An Emerging Overarching Principle? Industrial Law Journal, 34(4), 284-307.
• Cox, A. (2016). Guide 3: Fair Procedures-Beware of bias. Litigation and Dispute Resolution.
• Glover v BLN Ltd. (No. 2) [1973] I.R. 388
• “G4S Secure Solutions (Ireland) Limited v Eric Onourah (2012)”
• Burns and Hartigan v Governor of Castlerea Prison (2005)”
• Linda Magill v Tomkins Limited (in receivership) t/a The Grand Hotel (2014)
• David Fox v National Gallery of Ireland (2014)”
• Alana Miley v Up To My Eyes (2014)” 
• Michael McCrann v Marks & Spencer Ireland Limited (2014”)
• Cathal Crilly v Vinmoe Traders Limited (2014)