Reputation and the Law
The importance of one’s professional reputation has been consistently recognised by the Irish courts, the Labour Court and the Workplace Relations Commission (WRC).
In a recent case (A HGV Lorry Driver -v- A Furniture Company (ADJ-00026562)), the WRC reaffirmed that the reputational consequences of a disciplinary process on an employee, should not be underestimated by employers, thereby necessitating strict compliance with generally accepted concepts of due process and fair procedure.
Fairness and Objectivity
In the present case, the employee had raised a complaint seeking adjudication by the WRC under Section 13 of the Industrial Relations Act 1969, alleging that he was unfairly sanction as an expired warning was taken into consideration by his employer.
In Bord Gais Eireann -v- A Worker AD1377, the Labour Court set out its remit in relation to disputes regarding internal investigations brought under Section 13 of the Industrial Relations Act 1969 as follows:
“It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”
This also applies to the WRC whose function is not to substitute its views for those involved in the process but rather to establish if the procedures adopted by the employer conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.
Reputational Consequences
In relation to the appeal in the present case, the employee’s input was not sought so as to provide any rationale for an increase in sanction from verbal to written warning. Other aspects of the process adopted gave rise to concern including the absence of notice including the usual safeguards in relation to the disciplinary meeting and delineation from the investigation process.
The WRC pointed to the decision of the Court of Appeal Judgement of Pierce Dillon -v- The Board of Management of Catholic University School (2018) IECA 292, noting “the potentially significant reputational implications for the good name and employment prospects of the applicant were recognised even though the final warning had expired.”
It was noted in Dillon that, by virtue of Article 40.3.2 and Article 40.3.1 respectively these are constitutionally protected rights and the courts are obliged in particular to ensure that the constitutional right to good name in both a professional and employment context is adequately vindicated (see also Corbally v. Medical Council ([2015] IESC 9); and ACC Loan Management Ltd. v. Barry ([2015] IECA 224)).
Further support for this proposition is also to be found in the judgment of Quirke J in De Roiste v Judge Advocate General [2005] 3 I.R. 494, which involved the involuntary discharge of a member of the Defence Forces, on suspicion of association with subversives:
“It is inescapable that the findings and conclusions resulting from the process had the capacity to affect the applicant’s reputation and good name whether favourably or adversely. He enjoys the right to a reputation and a good name. That right is constitutionally protected.
I am satisfied that since the process undertaken directly concerned matters relating to the applicant’s reputation and good name, its findings and outcome affected his constitutionally protected right to his reputation and good name. Accordingly, he had a legitimate, fundamental significant interest in the process and is entitled to seek the relief which he has sought in these proceedings.”
Recommendation of the WRC
In the present case, Section 13 of the Industrial Relations Acts 1969 required that the WRC make a recommendation in relation to the dispute. Arising from the aforesaid, the WRC recommended that any documentation pertaining to the expired verbal and written warning be expunged from the employee’s employment file.
Correction of Personal File
In A Worker v A Local Authority (ADJ-00027533), the worker raised a number of grievances under section 13 of the Industrial Relations Act, 1969, which he claimed the employer did not address. These included a failure by the employer to investigate a bullying complaint that he made, a reduction in his overtime payments as well as a failure to make him aware of certain documents which were on his personnel file. The Adjudication Officer noted that since filing the complaints, the worker had been shown a copy of his personnel file, was fully aware of the contents of same and that any allegations made against him have been removed. That being the case the employer preempted a solution that would have been recommended by the Adjudication Officer.
Further Information
For further information, please contact the author of this article, Barry Crushell.
