‘Tis the season to apply fair procedures – a timely warning in advance of the Christmas party
- A recent decision, A Driver v A Waste Management Company (ADJ-0000293) is a seasonal reminder to employers that their Christmas events are workplace events and that a reasonable investigation is necessary even where serious misconduct is admitted.
- In the case, an employee was dismissed for punching another employee several times at a work Christmas party.
- The Adjudication Officer (AO) decided that the dismissal was unfair due to a lack of fair procedures and highlighted the following deficiencies:
- The employer failed to properly consider the mitigating circumstances justifying his violent behaviour (that he fought off colleagues to prevent further disruption to the party).
- Even though the fracas was admitted, the investigation was unfair because the employer did not fully investigate the events leading up to punching episode; and
- A professional translator was not provided for the employee at the disciplinary hearing (the employee was not a native English speaker);
- The compensation awarded was low, €3,500 (approximately 25% of the losses originally claimed by the employee). The award reflected the contribution of the employee's violent conduct to his dismissal. Notwithstanding the low award, the decision touches on several aspects of fair procedures and is a helpful reminder of an employer's obligations.
Does "workplace" include the Christmas party?
- Yes. In line with well-established case law in this area, the AO had no difficulty in finding that conduct, which occurred at a company sponsored social event occurred within the "workplace" and was covered by the employer's disciplinary policy. This was the case even though several other companies were sharing the venue for their Christmas parties.
So what happened?
- Shortly after the fracas, the employee was suspended with pay pending an investigation. At the time of suspension he was informed of (i) the allegation of misconduct against him; (ii) the fact that the outcome of the investigation could be disciplinary action up to and including dismissal; and (iii) his right to bring representation to any investigation/potential disciplinary meetings that followed. There was no criticism of the manner in which the employee was suspended.
- A professional translator was provided for the initial investigation meeting although not for the disciplinary hearing. The employee was accompanied by his 18 year old daughter at the disciplinary hearing who acted as a de facto translator.
- Throughout the investigation, the employee admitted the fact that he had struck his colleague but explained that he had done so as a result of his "grave concerns" that colleagues were admitted to the function in a seriously intoxicated state. He emphasised this as justification for his conduct and claimed that his honesty in responding to the incident when questioned by his employer should be taken into account as a mitigating factor when deciding on any disciplinary penalty.
The Investigation process – what did the employer do right?
- Contractual obligations of fair procedures were fulfilled.
The employee argued that he had not been afforded fair procedures as he did not fully understand the procedures he was participating in. He also argued that the potential consequences of his actions were not clear to him.
The AO did not accept this and decided that the contract of employment sufficiently identified the matters that could lead to termination of employment even though there was no specific definition of gross misconduct. The AO decided that the striking of a fellow colleague at a work sponsored social event would reasonably constitute "serious misconduct".
So where did the employer go wrong?
The AO identified the following procedural deficiencies which "all contributed to investigation and disciplinary process that has fallen short of the standards required":
(i) Failure to complete a thorough investigation of issues despite the fact the conduct was not in dispute.
Although the employee admitted striking his colleague, the AO held that the employer had failed "to complete a thorough investigation or call all witnesses that had observed the incident" who may have provided the investigation with "a fuller understanding of what had occurred". It is well established that when dismissal is a possible outcome from a disciplinary process, an enhanced level of due process is required. It is reasonable in such a situation to interview all witnesses and, in particular, to attempt to verify any mitigating circumstances that have been pleaded. In this case, it was a deficiency that witness evidence to corroborate the employee's assertions that his colleagues were very drunk and that other employees were also involved in the incident was not obtained.
The AO also criticised the employer for not providing the employee with a copy of the notes of the investigation in advance of the disciplinary. This is a very basic error which interfered with the employee's ability and right to properly prepare to meet the case to be put to him. When coupled with the language difficulties, it is clear that the employer was exposed to a strong challenge that it had failed to afford the most basic right of the employee to be fully heard.
(ii) Failure to cater for the language difficulties of the employee and failure to fulfil obligation to provide adequate translation services
The AO noted the employee's language difficulties and held that he was not provided with a "competent interpreter" during the disciplinary proceedings. The AO outlined that the employer's obligations in this regard as follows:
"Central to providing a foreign employee and a non-native English speaker with fair procedure is the obligation for an employer to cater for potential language difficulties, particularly in serious issues such as a potential dismissal"
(iii) Failure to afford the employee the opportunity to present any mitigating circumstances for the conduct.
Having regard to points i) and ii) above, the AO held that the employer had failed to complete a more thorough investigation of the issues which would have given the employee the opportunity to present mitigating circumstances.
The employee's contribution to his own loss
In making an award under the Act, The AO did take the employee's contribution to his losses into account and awarded €3,500 which amounted to 25% of the losses actually claimed.
Fair procedures – is a perfect process required?
It is well established that there is no "one size fits all" rule. The precise requirements for due process in any situation will depend on the facts of the case. The threshold for fairness is significantly higher where dismissal is a possible outcome. Contrast the above decision with the recent decision in A Cleaner v A Facility Service Provider (ADJ-00006760).
Although the facts of this case were not similar to the A Driver case, it is interesting to note that some of the same procedural deficiencies were raised with the investigation and disciplinary process, including the fact that full copy investigation documentation and a translation service were not provided to the employee who was a non-native English speaker. The AO addressed these issues in his decision and referred to the following principles of natural justice to be applied in any disciplinary procedure:
(i) The details of any allegations or complaints are put to the employee concerned;
(ii) The employee concerned is given the opportunity to avail of the right to be represented during the procedure;
(iii) The employee concerned has the right to a fair and impartial determination of the issues concerned and taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances; and
(iv) The employee concerned should also be made aware of the appeals process.
Having reviewed the procedures, the AO found that "although the procedures used were not perfect, they did adhere to the principles of natural justice" as outlined at points (i) – (iv) above and the decision to dismiss was therefore fair in the circumstances. In support of this view, the AO cited the decision of Barrett J in Boyle v An Post  IEHC which states that "fairness is ever required, perfection is unattainable".
The difference in outcome can possibly be explained as follows. Overall, in the second case, the AO was satisfied that the deficiencies did not interfere with the basic fairness of the process when the process was looked at holistically. In the second case, the AO found that that the employee had been given the opportunity to properly defend himself and his actions. In particular, the AO noted that, although no interpreter was present, no difficulty in relation to translation was raised by the employee at any stage during the hearing and the evidence from the employee's line manager was that there was never any issue in relation to language difficulties. In the first case however, the employer started off badly with the employee's language difficulties preventing him from properly defending himself and putting forward any mitigating factors before a decision was made.
Tips for employers:
This A Driver case reminds employers of the importance of ensuring that:
- A clearly worded disciplinary policy is in place before proceeding in any investigation/disciplinary process. This policy must be communicated to and understood by all employees particularly non-native English speaking employees;
- Employees are fully able to participate in the disciplinary process. In practice, this imposes an obligation on employers to ensure there is a competent translator present throughout both the investigation and disciplinary stage in circumstances where significant language difficulties exist for the employee in question; and
- A thorough investigation of all available evidence relating to the particular conduct under investigation is carried out. A thorough investigation should be carried out even in circumstances where the employee has admitted to the conduct in question as it affords the employee the opportunity to respond to all the allegations raised and put forward any mitigating circumstances before any disciplinary sanction is imposed.
For more information, please contact Karen Killalea, Partner, Audrey Whyte, Solicitor, or a member of the A&L Goodbody Employment Team.
Date Published: 7 December 2017