Kelleher v An Post
Irish Courts and Tribunals have consistently held that, even where there is a substantive reason justifying the dismissal of an employee, the dismissal itself becomes unfair if fair and reasonable procedures are not followed in effecting the dismissal. A recent High Court case, Kelleher v An Post provides useful guidance on the requirement to follow fair procedures during a disciplinary process.
In this case, the High Court considered whether the defendant employer, An Post, had followed fair procedures in the investigation which led to the termination of employment of the plaintiff, a postmaster in Newcastlewest, County Limerick. The dismissal took place following an alleged failure to follow security procedures in the course of a kidnap incident and alleged misuse of company funds.
While the plaintiff was on annual leave, his son was the victim of a tiger kidnapping and held to ransom. Members of staff handed over €105,000 from An Post’s funds without its knowledge to secure the release of the plaintiff’sson.
An investigation by An Post ensued and a number of shortcomings in the performance of the plaintiff ’s duties were identified duringthe course of the investigation, including a failure to follow company security procedures in the course of the kidnapping incident, misuse of company funds, failure to process business deposits on day of receipt and the unauthorised access, to the Post Office and Counter Automation System of the plaintiff ’s son.
The plaintiff was afforded the opportunity to furnish explanations and/or to put forward representations in relation to the issues raised at every stage of the disciplinary process. He was also afforded the opportunity of an oral first instance hearing followed by an appeal hearing as well as a full opportunity to make both oral and written submissions.
The plaintiff claimed that the procedures adopted were flawed in a number of respects, including the fact that:
- there was a pre-determination of the issues;
- there was bias/pre-judgment on the part of the investigator who had expressed his view of the issues raised prior to the decision to dismiss;
- he was entitled to be furnished with the appeals officer’s report and recommendations before any final decision was made in relation to the termination of his contract and the refusal of his appeal; and
- there were discussions between the investigator and the decision-maker prior to the conclusion of the investigation and that this was in breach of the principle "nemo judex in sua causa" (ie no one should be a judge in his own cause).
Giving judgment in the case, Mr. Justice Peart was satisfied that there was no pre- determination of issues or bias on the part of the investigator in circumstances where the investigator communicated the view of An Post that the plaintiff was negligent in his duties following the issues identified by the invetigator during his investigation. This was on the basis that the plaintiff was given the opportunity to furnish any explanation or representations in relation to the issues raised prior to a decision being made by An Post in relation to any disciplinary action.
In addition, the Judge did not agree with the plaintiff ’s contention that the person hearing the appeal should, in respect of the investigation of the alleged conduct, revert again to the plaintiff for his further submissions prior to making his report and recommendation. In the Judge’s view, the plaintiff had his appeal hearing and this is where his fair procedures are afforded to him. Following the hearing of the appeal, a decision falls to be made and the Judge was of the view that there is no obligation on the appeals officer to once again revert to the plaintiff before that decision is made.
The Judge was satisfied that there was no breach of the nemo judex rule. He relied on Mooney v An Post  4 IR 288 to the effect that “the principle of ‘nemo judex... seldom applies in relation to a contract of employment where the employer judges the issue and is an interested party”. The Judge expressed the view that in an internal investigation leading to a dismissal, it is inevitable that the decision-maker and the investigator would have some form of contact and communication about the issues involved. In all, the High Court was satisfied that the procedures adopted were scrupulously fair.
Notwithstanding the Judge’s views on the practicality of discussions taking place between the investigator and the decision- maker, it is important to note that each case is determined on its own facts and there is no “one size fits all” approach to adopt in the application of fair procedures. Employers should be cautious in relation to any communications between investigators and decision-makers so as to minimise any allegations of a flawed process. In order to preserve the integrity of the process, it is recommended that there is a clear delineation of the role of the investigator and the decision-maker. A distinction in their functions should also be maintained throughout the process to minimise any argument by an employee that bias or pre- judging of matters took place so that the process is not undermined.
This case demonstrates that the courts adopt a practical approach in assessing fair procedures in the context of disciplinary investigations. The courts will look to the process as a whole when determining whether fair procedures have been followed.
- The case serves as a reminder of the key principles of fair procedures in a disciplinary investigation, which include:
- the right of the employee to be informed of the allegations made against him/her in a comprehensive manner;
- the right of the employee to give his representations or submissions in respect of to the allegations made;
- the right to avail of representation;
- the right to a fair and impartial determination of the issues, and the right to appeal.
Employers should review their disciplinary policies to ensure that they reflect the above principles and clearly set out each stage of the disciplinary process. An employer will be best placed to defend an action taken on foot of a disciplinary process leading to a dismissal where it can show that it has a clear and well-drafted disciplinary policy in place, that employees have received or are made aware of the employer’s policy and that the employer has strictly adhered to its disciplinary policy and procedures. In practice, it is advisable that an employer obtains a signed acknowledgement from each employee confirming that they have received and read the employer’s disciplinary policy.