A recent case by the Authority has warned against a rushed summary dismissal process even if the conduct or behaviour by an employee is serious misconduct.
An employee working at a Club was “instantly dismissed” after the Employer became aware of the employee retaining a club members’ food and drinks voucher and used it to purchase food and drinks for his own personal consumption as well as taking an opened bottle of wine from the club premises.
While neither party disputes that the conduct of the Employee was inappropriate, the Authority was tasked with considering whether or not the summary dismissal was justified and procedurally fair.
The Authority heard how the employer invited the employee to meet to discuss “a couple of incidences” that had come to their attention, and how during the meeting CCTV images of the conduct was shown. After asking for, and hearing, an explanation from the employee, the employer told the employee that they needed to have a meeting the next day and that the employee should bring their uniform as they would more than likely be dismissed.
The parties dispute the events at the second meeting, although it was found more likely than not the Employer had considered dismissal was the only option and that this was conveyed during the meeting in some way or manner. The day after this meeting, a letter was provided to the employee affirming that there would be a summary dismissal for misconduct and that the conduct was found to be wilful or deliberate, dishonest.
As the allegation was one of dishonesty, the Authority commented that they would’ve expected a very careful and well document investigation to proceed and that in this case, the investigation ‘fell at the first hurdle’ by the employer not providing information about the allegations and evidence in their written invitation.
Although it was reasonable to categorise the conduct as “potential dishonesty” when the employer first became aware of the conduct, the Authority found that the employer did not approach the matter with an informed and open mind. The Authority found that a fair and reasonable employer could have approached this issue with more caution and the decision to dismiss was unnecessarily rushed, which meant there was not a procedurally fair process.
It found that the summary dismissal of the employee was substantively justified on the grounds that he engaged in serious misconduct involving the repeated, deliberate and calculated use of what was not his property. However, as the procedural deficiencies had “robbed” the employee of the opportunity to seek legal advice and reflect on his actions, it was found that the dismissal was unjustifiable and the employee was entitled to remedies.
It was a case from thirty five years ago (BW Bellis Ltd (t/a The Coachman Inn) v Canterbury Hotel etc IUOW) which found that a dismissal could be found to be a lawful exercise of an employer’s right but “unjustifiable” by virtue of the way in which the matter was handled.
This case is a good reminder that employers must ensure that any investigative/disciplinary process is procedurally fair and substantively justified before making a decision such as summary dismissal or taking any other forms of disciplinary action.
