by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher.
A recent case involving an employee who was fired for slapping his manager’s face, and who subsequently won compensation at the Workplace Relations Commission (WRC) against his former employer, reminds us that following internal procedures is essential regardless of the apparent seriousness of the incident.
The employee claimed that he hadn’t slapped his manager at all, but rather had tickled his chin in an effort to get his attention. There was some inconsistency in the employee’s evidence to the WRC on whether he really had slapped, tickled or perhaps tapped his manager’s face. However, while the employer felt this was this sufficient to dismiss the employee with immediate effect, the WRC Adjudicator disagreed and held that the employee had been unfairly dismissed.
While accepting that the employee’s behaviour was in any event wholly inappropriate, amounting to misconduct, the Adjudicator nevertheless rejected the employer’s assertion that the contact was violent and held that it did not fall into the category of gross misconduct.
Moreover, the process which led up to the dismissal was flawed; the investigation was little more than a brief discussion as to what had occurred, followed more or less immediately by a disciplinary hearing. That in itself, suggested to the Adjudicator that disciplinary action was pre-ordained.
The WRC pointed out that a disciplinary procedure is intended to be progressive and to afford employees an opportunity to improve and thereby avoid the ultimate sanction of dismissal. However, in this instance, the employee was dismissed with immediate effect and therefore did not benefit from any such opportunity.
It is worth noting the small award – €2,000, (10 week’s pay for the part time employee) – which reflected the employee’s contribution to his own dismissal.
The case illustrates the long established principle that a disciplinary sanction must be proportionate to the misconduct in question. The Adjudicator ruled that the employee should not have been summarily dismissed, but rather he should have received a final written warning, which would have given him a chance to reflect on his behaviour.
In summary, it is important for any employer who is faced with the possible disciplining of an employee to remember certain key principles:
- Investigate the matter; be clear about what the allegations are, and look into the matter thoroughly and objectively. Gather evidence from both sides before drawing any conclusions.
- Act proportionally. Don’t use a sledge hammer to crack a nut. If a disciplinary sanction is required, consider all the possible sanctions that are open to you as employer and consider the most appropriate one in the context of the particular circumstances of the case. There are many examples of misconduct which some employers might think merit dismissal but which the WRC does not.
(ADJ-00017060, AO: Catherine Byrne)
About the author
Barry Walsh is Partner and Head of the Employment Team at Fieldfisher. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.