In two recent Employment Appeals Tribunal (EAT) decisions we have seen the tribunals place an importance on the previous record of the employee, in determining the correct sanction. The tribunal in each case referenced the mitigating factors such as the "unblemished record" of the employee prior to the misconduct, and deemed that dismissal for such offences was unreasonable given the circumstances.
In these cases the Tribunals felt that as the employees had demonstrated such good behaviour at work up to that point, that these things must be taken into account when giving them a disciplinary sanction.
Some previous case-law on this matter can be seen in the case of Heffernan -v- Dunnes Stores UD1355/2009 where the employee was dismissed for abuse of the Company value club scheme. In their determination the Tribunal noted that the employee was of ten years good standing and had a untainted record, which contributed to the finding of Unfair Dismissal
Case 1
In Mulvany -v- G4s Secure Solutions (Ireland) Limited UD312/2011 the employee was dismissed following an incident at The Square Shopping Centre in Tallaght. The Employee was chasing a number of young teenagers out of the centre when he spotted a child hiding which he thought was associated with these teenagers and grabbed him by the elbow. The childs family arrived and were aggressive towards the employee. The employer brought the employee to an "investigatory meeting" to discuss the statement made by the Customer Service Manager about the incident (which he did not witness and arrived on the scene after it occurred) and there was CCTV footage of the incident which only the disciplinary officer viewed and was not made available to the employee.
15-20 minutes after the investigation meeting the Employer held the disciplinary hearing where it was found that the employee should have exercised a greater level of professionalism, as the level of force used was inappropriate, and the "only course of action was to terminate his employment".
The Tribunal noted that fair procedures were not adhered to and the investigation and disciplinary meeting were flawed. The matter of concern seemed to be that no alternative sanctions were considered and the tribunal cited the mitigating factors in this, including the unblemished record. The dismissal was deemed unfair and compensation of €48,000 was awarded as well as four weeks pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, amounting to €1,900.
Case 2
In the second case of Veselovs -v- Lir Chocolates Limited UD2086/2010 the employee was dismissed for skating on a trolley across the factory floor. The Employer placed a huge emphasis on Health and Safety in the business and several witnesses placed this incident very highly on a scale of 1-10, and if someone had walked into the path of the trolley there could have been a serious injury.
In their deliberations the tribunal firstly considered that there were no minutes of any meetings available which was not helpful, and secondly their consideration was "Does the punishment fit the crime?"
It is important to note that the tribunal is not considering what they would have done, but if what the employer did in that case, if this was reasonable and within the range of reasonable sanctions available. It is a very well-reasoned decision as the tribunal notes that "the proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair".
The decision made reference again to the unblemished record of the employee, and as a result the tribunal decided that the dismissal was unfair and awarded €6,000.
Reasonableness Of The Employer
In these cases a tribunal must consider if an employer complied with Section 5 of the Unfair Dismissals (Amendment) Act 1993, which provides that the reasonableness of the employers conduct is an essential factor to be considered in the context of all dismissals. it states;
"...in determining if a dismissal is an unfair dismissal, regard may be had...to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal."
This means an employer must take into account all mitigating circumstances when looking at a case and not look at it in isolation, much like our previous article on Social Networking, the context is everything. Factors such as an unblemished record must be taken into account as failure to do so could leave the employer open to a finding of unfair dismissal.
