The High Court delivered two important judgments from an employer's perspective in relation to disciplinary investigations and fair procedures.
Kelliher v An Post*
The High Court dismissed a postmaster's claim that his employment had been wrongfully terminated after it held the procedure followed at investigative and appeal stage was fair. The plaintiff in this case was the postmaster in Newcastle West, County Limerick. While he was on holidays there was a tiger kidnapping in which his son was held to ransom. He was safely released after members of staff handed over €105,000. An investigation by An Post followed in which a number of irregularities came to light. The plaintiff was suspended and subsequently his employment was terminated. The plaintiff claimed that the procedures adopted were flawed in a number of respects; that there was predetermination of issues, that there was contact between the person carrying out the investigation and that the appeal in breach of the principle "nemo iudex in causa sua". Peart J however held that the procedures adopted were scrupulously fair. An Post was held to have complied with its own policies and procedures.
Kelly v Minister for Agriculture**
In the second case the claimant was the harbourmaster of the Killybegs Harbour Centre in County Donegal. It was alleged that he engaged in private business interests which were in conflict with his civil service position. The Government instigated a lengthy investigative and disciplinary process on foot of which a decision was made to dismiss him. He brought judicial review proceedings challenging the decision. He claimed that he was not informed of all the allegations against him, he wasn’t allowed legal representation in the process and that there was alleged bias due to the Minister for Agriculture's involvement with the investigator and her subsequent participation in the cabinet decision to dismiss him. The reliefs sought were refused as the Court confirmed that the full panoply of fair procedures do not apply at the investigative stage. The Court confirmed earlier case law to the effect that the full rigours of fair procedures do not apply at the initial investigative stage and that there must be some element of flexibility at this juncture.
The above cases demonstrate the importance of having tight, well drafted disciplinary policies and procedures in place. Such policies should expressly set out an employee's entitlements at each stage of the disciplinary process. At a very minimum a policy should be in compliance with SI 146 of 2000 (the Code of Practice on Grievance and Disciplinary procedures which promotes best practice in the application of these procedures). If an employer rigorously adheres to their own policies and procedures, then they will have a greater chance of defending any action taken on foot of same.