A recent decision of the Workplace Relations Commission (“WRC”) has revisited the reoccurring question of whether an employee is entitled to bring legal representation to a disciplinary meeting.
Background
The Code of Practice on Grievance and Disciplinary Procedures provides that an employee has the right to have a “representative” with him or her at disciplinary meetings. A representative is defined as “a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise”. This conscious bid not to over-legalise the workplace was cemented in the Supreme Court case of Burns & Anor. v The Governor of Castlerea Prison, IESC 33, where it was confirmed that in general, there is no right to legal representation at internal disciplinary hearings. It was accepted that in exceptional circumstances that a right to legal representation may exist, but this would only “be required by the principles of constitutional justice”.
WRC Decision
A new decision of the WRC (ADJ-00011096) has echoed the decision of the Supreme Court above. It found that a security company who did not allow a former employee to bring legal representation or an advisor from the Citizens Information Centre to a disciplinary meeting was not unfair. The case concerned a former employee who brought a claim for unfair dismissal after he was dismissed for refusing to work a new roster.
The employee was engaged by a security company to work three 13-hour shifts a week. In December 2016, he was transferred to another construction site where he “ran into conflict with people on the site”. As a result, the client of the security company requested that he be relocated to a different site. The employee requested that at the new location he be kept on the same shift pattern as it suited him to care for his child. His employer stated the roster would remain the same for the foreseeable future but he could not guarantee that it would not change in the future. After the employee was told the company could not guarantee his current roster, he acted aggressively, stopped coming to work and told a HR representative he would “see you in court”. His employer continued to circulate the roster to him until they received confirmation that he had obtained other work. Two weeks after he began work elsewhere his contract of employment was terminated for failing to come to work.
The WRC found that there were several shortcomings in the manner with which the employer dealt with the dismissal of the employee, and the claim for unfair dismissal was upheld for a number of reasons. Despite finding in favour of the claimant, the adjudicator stated that she did not find any unfairness in refusing to allow the employee to be accompanied by legal representation or an advisor from the Citizens Information Centre. The adjudicator found that the employee had prejudiced himself by choosing not to bring a representative to the meeting and noted that he could have “been steered in a different direction by a calmer colleague”. Although an award was made for unfair dismissal, it was concluded by the adjudicator that the employee through his manner and conduct was responsible for 75% of his dismissal.
Lesson for Employers
The Supreme Court is the highest court in Ireland, and its decisions are binding on those courts and forums under it, yet the question of legal representation at disciplinary meetings comes up again and again. A clear statement in a disciplinary procedure outlining the parameters of representation throughout disciplinary procedures will ensure that all employees understand that there is no absolute right to legal representation.
Contributed by: Jeffrey Greene
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