It is crucial to exercise extreme care when dismissing an employee – even if he or she has been convicted of a serious criminal offence and even in instances where your discipline policy permits dismissal on conviction. A former employee of a multinational retailer was recently awarded €11,500.00 in compensation for being unfairly dismissed after being convicted of a serious criminal offence.
The Employment Appeals Tribunal heard testimony from a large multinational retailer (respondent) and a former employee (claimant) who claimed to have been unfairly dismissed by his employer of 15 years after being convicted of a criminal offence.
According to the Employment Appeals Tribunal Report, at the time the claimant was dismissed, in September 2011, he was working as a charge hand in one of the respondent’s stores. The claimant’s disciplinary record with the respondent, apart from the issue for which he was dismissed, was clean when his employment was terminated.
In 2009 the employee had been charged with the criminal offence of possession of an illegal substance with the intention to sell it. According to the claimant, when he was charged with the criminal offence he informed the then Store Manager and continued as normal in his employment thereafter.
According to the claimant, he informed the new Store Manager and the Personnel Manager in April 2011 that he would need time off to attend Court in July of that year. The respondent claimed that he had informed the company of his requirement for time off in July rather than in April.
The Claimant was absent for approximately one month from early July to early August due to an injury. During that month he attended Court and received an eight-month suspended sentence in light of his guilty plea.
On 2nd August 2011, the then Store Manager held a meeting during which the claimant confirmed that he had received a conviction. The claimant was informed that this could have repercussions on his employment status with the company and that it could result in dismissal after investigation. He was suspended with pay while an investigation was carried out.
A number of investigation meetings were held with the claimant. A Union representative was present and a number of issues were raised in the meetings. It came to light that the store’s Personnel Manager had provided a character reference for the claimant in advance of the trial in addition to a standard reference from the company.
The respondent pointed out that the character reference that was provided by the Personnel Manager was not on company headed paper and therefore was an unofficial letter, however, the Union representative nullified this point by highlighted the fact that numerous letters regarding the meetings between the claimant and the respondent were also on non-headed paper but were considered official.
*At the Hearing, in February 2014, the respondent confirmed that it stood over the character reference as well as the standard company reference that had been provided to the claimant.
A notable issue raised during the course of the meetings related to the claimant’s conviction bringing the company into disrepute. The Union representative stated that the conviction had not been reported in the news and enquired as to how the company’s name was in disrepute. The Union representative asked how other employees with convictions had been disciplined.
Due to the nature of the conviction, once the investigation was concluded, the Store Manager decided to invoke the disciplinary procedure. The respondent was concerned about the drug conviction and the impact it would have on customers entering the store if it became public knowledge.
A meeting was held on the 20th September 2011 with a subsequent meeting on the 26th September 2011. At the second meeting, the claimant was informed that he was dismissed on the grounds of serious misconduct under the following headings:
- Conviction by a Court of law for any serious criminal offence considered damaging to the company or its employees.
- Conduct which brings the company’s good name into disrepute.
The claimant decided to appeal the decision and his representative wrote a letter detailing the appeal grounds. The Appeal Officer was the Manager of another of the respondent’s stores. The Appeal Officer was asked to hear the appeal but was not provided with the letter setting out the grounds of appeal.
At the appeal meeting the Appeal Officer listened to the claimants grounds of appeal and went on to investigate each one afterwards. The Appeal Officer travelled to the store where the claimant had been employed so that he could review his personnel file. However, he did not speak to the Store Manager, the Personnel Manager or anyone else working at that store in relation to the claimant.
The Appeal Officer considered the issues raised by the claimant including, firstly, the fact that he had kept the company apprised, secondly, the fact that he was provided with a character reference from the Personnel Manager for Court and, finally, that the conviction was not in the public domain.
The Appeal Officer considered the notes from the meetings held with the claimant when considering the appeal. Given the grounds of appeal he did not deem it necessary to speak to anyone other than the claimant. In concluding his consideration of the appeal he upheld the decision to dismiss as he found that the claimant’s conviction could easily bring the company into disrepute. When cross-examined at the Employment Appeals Tribunal Hearing, the Appeal Officer confirmed that he did not find evidence that customers or members of the public were aware of the claimant’s conviction but he did consider how it would be viewed if it came into public domain.
The Employment Appeals Tribunal found that the dismissal was unfair. It found that the company’s procedures, particularly in relation to the appeal process, were insufficient and it should have considered sanctions other than dismissal. While dismissal was an option open to the respondent under their disciplinary procedure, it should have genuinely considered alternative sanctions in light of the claimant’s otherwise clean employment record and because he had made efforts to keep the company apprised of the situation.
The dismissal of the claimant was deemed by the Tribunal to be procedurally unfair. The Tribunal found that the evidence of the Appeal Officer regarding the appeal procedures fell well short of what is normally accepted as being fair.
While the nature of the complaint against the employee was serious, the employer should have considered the fifteen years of exemplary employment prior to this.
After considering all elements involved in this case, the Tribunal determined that €11,500 should be paid in compensation to the claimant under the Unfair Dismissals Acts, 1977 to 2007.
