In a recent decision by the Workplace Relations Commission, an Adjudication Officer (the “AO”) has ordered the reinstatement of a bus driver who was dismissed for theft, along with back pay for the period since his dismissal.
The Complainant had been employed by the Bus Company as a part-time school bus driver since 2002. In July of 2017, the Complainant was seen on CCTV footage removing over 20 wheel rims which were wrapped and sealed on a pallet located in the employer’s premises. Following this, he was shown this footage by the Services Manager who made comment that he had been “caught stealing rims” and was subsequently asked to attend a disciplinary meeting with regard to theft of company property. At the disciplinary hearing on 15 August 2017, the Complainant admitted he had taken the wheel rims but stated he had done so with the express permission of the foreman. Following the disciplinary hearing, the Respondent advised the Complainant on 18 August 2017 that his contract would be terminated after seven days on 25 August 2017 and he had the right to appeal.
The Complainant appealed the decision, but this had not been heard by the time the case went before the Workplace Relations Commission. This was attributed to the fact there are agreed company procedures which require appeals to be heard by the Disciplinary Appeals Board, chaired by an independent chairperson.
The Complainant argued that the investigation process was unfair, unreasonable and contrary to the Unfair Dismissals Acts 1977-2015. It was noted that there was reference to there having been an investigation and therefore there had been a two stage process. This in turn meant that the Services Manager was not only involved in the investigation but that he was also involved in the disciplinary hearing – resulting in a lack of impartiality. He also argued that the investigator never provided him with a report of the findings of the investigation and he could therefore not dispute these findings, as well as the fact he was not given an appeal hearing subsequent to having lodged this with the Respondent.
The AO gave a recap on his role in deciding on unfair dismissals cases. He highlighted that the function of the AO is not to establish the guilt or innocence of the employee but rather “to assess what a reasonable employer, in the Respondent’s position and circumstances, might have done”. The AO’s decision centred around the fairness of the disciplinary procedure, and had regard to the case law concerning the separation of the investigation stage from the disciplinary decision making process.
The AO held that the disciplinary process was flawed due to the fact that the Services Manager was the person who both investigated the allegations against the Complainant and, having completed this investigation, then conducted the disciplinary hearing in which he was the decision maker with regards to sanction and that this was inappropriate in the circumstances. The AO felt that questions of objectivity and pre-judgement of the matter arose as a result.
Furthermore, it was commented that there had never been a report of the Service Manager’s investigation prepared or provided to the Complainant which meant he was not in a position to prepare for the Disciplinary Meeting. The invitation provided to the Complainant to the Disciplinary Hearing also failed to advise him that this matter was serious and could result in the termination of his employment.
Whilst it was accepted by the AO that there the Respondent had provided reasons for the delay in an appeal hearing being heard, he felt that this compounded the unfairness of the process – essentially meaning that the employee did not have to have gone through this internal appeal prior to raising the claim.
The AO therefore upheld the complaint and ordered that the Complainant be reinstated with full salary to apply retrospectively.
This case highlights two important issues. Firstly it underlines the importance of maintaining independence at each step of the disciplinary process by having different individuals undertake the investigation stage and subsequently the disciplinary stage. Someone who had involvement in the investigation should not be involved in the disciplinary hearing. Further, where there is an appeal hearing, this should also be undertaken by a different individual. It was also particularly unsatisfactory in this case that the Complainant was not given clear detail on the allegations being made against him, nor that the disciplinary hearing could result in his termination of employment. Employers should be aware of the importance of providing such information to employees in advance of any hearing.
Secondly, it serves as a stark reminder of the power of adjudication officers to reinstate an employee who has been dismissed, and the power to award back pay for the period in which the employee was dismissed. This is a risk which should be considered when unfair dismissal proceedings have been raised, along with the associated costs of having to pay an employee back pay.