Unfair Dismissal case review

Background

The employee was employed for 13 years as a contract cleaner in a Storehouse until her dismissal for gross misconduct in 2014. The contract cleaning company was responsible for the general cleaning of the storehouse building in question where the employee was employed as a cleaner.

Employers Case

The cleaning company told the tribunal how they were contacted on the night in question and were informed that a serious incident had occurred at a Storehouse where a function of 360 people was taking place. The employer gave evidence that they investigated the incident and interviewed the employee with the right to representation at the meeting. The alleged incident was that the employee had used the executive suite for her break and while using the toaster, a piece of bread got stuck which activated the fire alarm. The employer described to the tribunal that the alarm system has a pre warning system which last for 2-5 minutes, the system allows for the alarm system to be de –activated before it goes into full evacuation mode. During the investigation they established that the employee panicked and ran from the executive suite thus allowing the alarm system to become fully activated. The employee also stated during the investigation she was afraid to report the incident to management. The alarm was subsequently stopped by a manager before the building was evacuated, and the evacuation process did not actually commence. Following the conclusion of the investigation the investigation officer recommended that the claimant be suspended pending further investigation. The matter then progressed to a disciplinary hearing.

During the investigation the employee stated she was very remorseful for her actions. The employee stated within the minutes that she did not have permission to access the executive suite but she did not like taking her break in the staff cabin as it was untidy. The employer found the allegations amounted to gross misconduct in accordance with the disciplinary rules.

Employee’s case

The employee told the tribunal that staff always took their breaks in the executive suite for breaks, including breaks with Supervisors and with Managers. She was never told she could not take her break there. On the night in question, the employee said she owned up to what happened as she felt if she took the blame she would just get a slap on the hands because of her service record. The claimant did not receive any training in relation to the alarm or evacuation procedures.

Tribunal decision

The Employment Appeals Tribunal found that the dismissal was unfair by reason that the respondent knew or ought to have known that the claimant and other staff used the suite for their breaks and practice and procedure condoned by the supervisors and or Managers had allowed them to do so.

The tribunal awarded €25,000 in compensation to the employee.

Lessons to learn from this case

This case highlights the importance of the sanction fitting the misconduct. As an employer if you are skipping steps in your disciplinary procedure or going straight to dismissal by way of gross misconduct, the alleged misconduct must be serious enough and justify the dismissal or the higher sanction.

Another important lesson is to ensure you have clear policies and procedures in place, the reasons for dismissal was that the employee did not follow procedure, however the employee stated that she did not have training on the procedure. If you have procedures that could potentially lead to a formal sanction, you have to train employees, have written confirmation that they received training and understand the training and also have a policy in place.

In any unfair dismissal case, the tribunal will look at the process and was there a justifiable reason for this employee to lose their job. There did seem to be fair process applied in this case, namely right to representation, investigation, disciplinary hearing and right of appeal however the tribunal ultimately found that the employee did not deserve to lose her job over this incident.

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Nora Cashe

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Nóra studied Law in Griffith College Dublin and qualified as a Barrister in 2008, practising in the area of Criminal law. She is also member of the Irish Employment Law Association.

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Nóra is a member of the Irish Employment Law Association and engages with the WRC Adjudication Service as part of their stakeholder engagement forum.

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