Fair Procedures in Disciplinary Matters*
This issue arose in case ADJ00008734. This is a case where the Adjudication Officer gave a very detailed overview of the law.
It was pointed out in the case that in Glover –v- BLN Limited 1973 IR 388 decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. In addition the case of Frank Shortt-v- Royal Liver Assurance Limited 1988 set out that where the disciplinary process may not be perfect but it should come within the test of what could reasonably be considered a fair response by the employer in the circumstances. The Adjudication Officer pointed out that this was also detailed in Mooney –v- An Post 1994 ELR103 where what exactly is required of an employer to satisfy the requirement of natural justice may differ from case to case. In that case Keane J stated that the two principles of natural justice namely “Audi alteram partem and Nemo Judex in causa sua” cannot be applied in a uniform fashion to every set of facts. Therefore while employers are required to afford natural justice and fair procedures to employees when carrying out a disciplinary process regard must be had for the particular circumstances of the case to ascertain what requirements of natural justice and fair procedures demand in the particular circumstances.
The Adjudication Officer pointed out that certain fundamental requirements of fair procedures were outlined in Glover –v- BLN Limited 1973 IR388 that cannot be dispensed with regardless of the particular circumstances which arise in an individual disciplinary matter. The Adjudication Officer set these out by stating that they are not limited to;
- The requirement to make the employee who is the subject of the investigation aware of all the allegations against him/her at the outset of the process.
- The requirement that the employer who has published a disciplinary procedure to its employees follows those procedures scrupulously when conducting a disciplinary process, and,
- In the event that an allegation against the employee is upheld any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.
The Adjudication Officer pointed out that the rationale is clear as to why the person who is the subject of a disciplinary investigation should be made fully aware of the complaint against him.
The Adjudication Officer pointed out that this is to ensure that the complainant has a meaningful opportunity both to prepare and to present his defence as detailed in Preston –v- Standard Piping 1999 ELR233.
The Adjudication Officer pointed out that where an investigation if carried out there may be occasions where as detailed in Kelly –v- Minister for Agriculture 2012 IEHC558 that full range of fair procedures might not apply at the investigative stage. Where in that case it was stated;
“I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the inspectors work. The procedure identified by the inspectors followed the outcome of the first stage accord in my view with the requirements of fairness and justice and guarantee, where appropriate, the exercise of the rights identified in Re Haughey. I gratefully adopt the dictum of the late Shanley J. It is fairness and justice which is to be sought in any investigative process and it is to this process as a whole that the Court must look to determine those basic requirements were met”.
In the present case the Adjudication Officer was critical of the fact that the respondent company did not provide a credible rationale for their failure and their refusal to transcribe the minutes of the investigation meeting with the employee. It appears that the person holding the disciplinary meeting never listened to those recordings and had no transcript and could not have taken into consideration the contents. The Adjudication Officer was also critical of the investigation as to how it was run particularly as the investigator rather than dealing with the grievances appears to have asked a number of individuals whether they wish to continue working with the worker. This is a very useful case in setting out the law in some detail.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.