In a recent judgment, the Court of Appeal neatly restated some principles that are fundamental to the fairness of internal disciplinary processes to which employees may be subject. As judgments of the Court of Appeal on such processes are relatively rare, this is a significant judgment that will undoubtedly influence future litigation in which an employer’s adherence to these principles is considered.

BACKGROUND

In Kelleher v An Post1 the appellant, a former postmaster in Newcastle West, Co. Limerick, sought to overturn the High Court’s dismissal of his action against An Post, in which he sought certain declarations, including a declaration that his dismissal was null and void.

The backdrop to the appellant’s dismissal was that his son had been kidnapped from his post office while he was on annual leave and, in order to secure his release, the staff of the post office agreed to hand over €105,000 at a specified location to the kidnappers by way of payment of a ransom demand. The staff’s actions, while securing the release of the appellant’s son, resulted in a disciplinary process being convened in the course of which the appellant’s 1 [2016] IECA 195 culpability for the failure of the post office staff to follow An Post security procedures was examined. Ultimately, the appellant was dismissed on the basis that An Post lost trust in confidence in him in circumstances where, amongst other things, he had left a post office employee in charge of the post office while he was on leave who had not been properly trained in An Post security procedures and, as a consequence, did not take appropriate steps to prevent the theft from An Post.

APPEAL

n his appeal before the Court of Appeal, the appellant raised a number of issues with the disciplinary process followed by An Post, which he submitted rendered unlawful the process followed to effect his dismissal, and consequently the dismissal itself. In particular, he asserted:

  1. the wrong appeal procedure had been invoked by An Post; and
  2. that he was entitled to receive copies of reports, that had been prepared in the course of his disciplinary and appeal processes by individuals who were not the disciplinary or appeals decisions makers, prior to those reports being received and relied upon by the designated disciplinary and appeal decision makers. 

The Court’s conclusions on these grounds of appeal is summarised below:

  1. Wrong Appeal Procedure Utilised

In rejecting this ground of appeal, the Court of Appeal noted that the appellant had participated in the appeal process without objection until the appeal decision issued. In this regard, the Court stated “there is abundant authority for the proposition that knowing participation in a procedure of this kind operates to create an estoppel against the party who elected to avail of that procedure…”. This pronouncement will be welcomed by employers who, in the context of litigation, are often accused after the fact of having utilised the wrong procedure to dismiss an employee, because provided they can show the employee knowingly participated in that procedure, the employee will not be permitted to subsequently assert that the incorrect procedure was applied in his or her case.

  1. Copies of relevant reports not furnished

It is well established that all evidence to be relied upon by a disciplinary decision maker must be shared with the subject of the disciplinary process, and he/ she must be afforded an opportunity to respond to that evidence, prior to it being relied upon to reach findings of fact. A failure to do so can render unfair and unlawful a process in which such evidence is relied upon. The Court succinctly repeated this well established principle as follows:

“modern jurisprudence clearly states that a decision-maker is not entitled to act on the basis of material gleaned from outside the hearing and which has not been disclosed to the party affected, albeit that this principle is subject to the important proviso that it only applies to disputed facts”

Applying the above statement to the facts of the appeal, the Court concluded that as the material facts that led to the appellant’s dismissal were not in dispute, the fact that he did not have sight of reports prepared by individuals in the course of his disciplinary and appeals processes prior to those reports being received and relied upon by the actual decision makers themselves, did not render the decision making process unlawful.

The Court did however caution that, had the facts been in dispute, the appellant would certainly have been entitled to see these reports prior to them being furnished to the relevant decision makers - the inference being that in the absence of this, the Court would have found the decision making process to be unlawful. The Court of Appeal’s restatement of this important principle is noteworthy, particularly as it is often the case that a disciplinary process will be preceded by a fact finding investigation. If a report is prepared following the conclusion of such an investigation, it is essential that the report be shared with the employee concerned prior to the disciplinary decision maker making a decision in reliance on the contents of the report. In the absence of this step being taken, the decision made by the disciplinary decision maker is at significant risk of a successful legal challenge.

CONCLUSION

Employers are generally aware of the importance of the following principles when it comes to conducting disciplinary processes:

  • the right of the employee to be informed in writing of the allegations made against him/her in advance of having to respond to them;
  • the right of the employee to respond to the allegations made;
  • the right to be represented at the disciplinary hearing;
  • the right to a fair and impartial determination on the allegations made;
  • the right to appeal the disciplinary decision made.

This case serves as a reminder that, added to the above list, should be the right to be provided with, and afforded an opportunity to comment on, all evidence the decision maker intends to rely on in reaching his/her disciplinary decision, irrespective of the source of that evidence.

A particularly welcome aspect of this judgment, at least from an employer’s perspective, is the very clear statement that, even if an employer does not follow its own disciplinary procedure, provided the employer can show the employee knowingly participated without objection in a disciplinary process conducted under a later disputed procedure, the employee will not be permitted to assert that an incorrect procedure was followed.