Employment Law Updates - JANUARY 2010

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Employment Law Updates - JANUARY 2010

Written by Peter Kearney

Friday, 05 February 2010 14:58

Employment Law update - January 2010*

1. EMPLOYEE DISMISSED FOR SELLING VIAGRA - RECEIVES €47,4166.66

Summary of the Case

Accusations were made that the employee in question was selling drugs in the staff canteen. An investigation was held and the employee was dismissed for gross misconduct. The employee appealed the decision but the decision was upheld. The substance that the claimant was alleged to have sold was described to the investigation team which they researched on the internet. The claimant said she was on medication for depression.

The EAT found she had been unfairly dismissed and awarded her the above sum.

What happened here?

It is somewhat unclear as the EAT did not give a full explanation.
The allegations were made against the employee and an investigation was held.
The employee alleges she did not know it could lead to dismissal.
It was also said that the employee changed her story during the investigation.
There appears to be poor record keeping by the company during the process.
The company use of procedures was questioned by the claimant.

What lessons are there for Employers here?

Ensure that all such meetings and investigations are properly recorded with the relevant parties informed.
Ensure that each party is clear as to the purpose of the meeting or investigation.
Ensure that all parties fully understand how serious such meetings are and what the possible outcomes could be.
Where allegations are made against a party ensure that they get to see the allegation made against them and are fully aware of the case being made against them.
Ensure that company procedures, particularly disciplinary, are fair, transparent and clearly understood at all stages of their explanation and implementation.
Where appropriate allow the relevant employee cross-examine those who are making the allegations against them or witnesses.

2. CHICKEN PROCESSOR DISMISSES EMPLOYEE - UNAUTHORISED LEAVE

Summary of the Case

A chicken processing company, in Co. Cavan, dismissed an employee who went on sick leave after being refused annual leave. The claimant initially complained of a toothache which the company did not sense any urgency about the ailment. During her absence the company attempted to contact her on at least two occasions. The claimant said she had returned to her home country for dental treatment. She was suspended with pay upon her return. When she returned from suspension she was dismissed for taking unauthorised leave. The company claim to have carried out an investigation. The claimant did not appeal the decision internally.

The EAT found she had been unfairly dismissed and awarded her €2,950.91.

What happened here?

The claimant was suspended but did not receive notification in writing.
No notes were kept by the company at the meetings.
The claimant was not advised of the seriousness of the meetings in writing.
The Company did not conduct a full enough investigation.
The Claimant did support her oral evidence with documentary evidence.
The claimant did not fully exhaust the internal appeal procedures – Trade Union and solicitor should have advised.

What lessons are there for Employers here?

Investigations into disciplinary matters must be thorough, transparent, fair and recorded.
Ensure that employee fully understands the seriousness of the meeting in writing.
Ensure that procedures for booking leave are clear and fully understood.
Ensure that any action taken against an employee is fair, objective and equal to the misconduct of the employee and reasonable.

3. EQUALITY AUTHORITY V PORTMARNOCK GOLF CLUB – NOVEMBER 2009

The Supreme Court dismissed the Equality Authority's appeal that the exclusive Portmarnock Golf Club is not a discriminating club under the Equal Status Act. It held that the Club falls within the exemptions provided for under Section 9 of the Act, as its principal purpose is to cater for the needs of one gender. The Supreme Court argued that the Equality Authority’s construction was ‘narrow, outdated and unnatural’.

The case also highlighted that the only sanction available under the Act where a club is found to be discriminating, is the invalidating of a drinks licence. Mr Justice Hardiman criticised the drafting of the Equal Status Act, stating that S.8 appears to be saying "we can't stop you running a single-gender, club but we will try to arrange that you won't enjoy it." Also, there appears to be potential for a clash of rights where interpretation of the statute could infringe the constitutionally protected right to freedom of association.

*Disclaimer

This information is for guidance purposes only. It does not constitute professional advice. Professional advice should be obtained before taking or refraining from any action as a result of the above contents.

1. JUNE 2009 – GALWAY HOTEL - EMPLOYEE RECEIVES €12,000!

Last Updated on Wednesday, 10 February 2010 14:40