Discussion or Disciplinary Process?

Introduction

What distinguishes a discussion from a disciplinary process?

In a recent case before the Workplace Relations Commission (WRC) and Labour Court, an employer was precluded from designating a discussion, as constituting a disciplinary process. This was due to a number of factors, but most importantly, as a result of the company not following its own process and procedures, as laid out in the company handbook (ADJ-00021741).

Background

This matter was heard in the Labour Court, on appeal by Lee Overlay Partners Limited against the decision of the WRC under the Payment of Wages Act 1991 (the Act), in favour of Mr Stephen Kiely, a former employer of the company.

Mr. Kiely claimed that his former employer failed to pay him a sum of €6,300 on 31 January 2019 in respect of two bonus payments which were due from reviews in 2016 and 2017. This failure, he claimed, constituted an unlawful deduction under the Act.

Mr. Kiely was informed that on the date the instalment becomes payable, each of the following conditions must be met:-

1.      You must be employed by the company;

2.      You have not given notice to the company of the termination of your employment;

3.      You have received a ranking of 5 or above in your most recent performance appraisal; and

4.      You have not been subject to the company’s disciplinary procedure in the preceding 12 months.

The bonus payments due from the financial years 2016 and 2017, which were due to be paid on 31 January 2019, were withheld as it was deemed by the his former employer, that he did not satisfy criteria 4, as he had been subject to a ‘disciplinary procedure’.

Payment of Wages Claim

The Act at Section 5 makes it clear that a deduction made by an employer is unlawful except in circumstances where the employee has given his or her prior consent in writing.

Subsection (6)(a) of Section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction.

In Dunnes Stores (Cornelscourt) v Lacey and Nuala O’Brien[2005] IEHC 417, unreported Finnegan P., the High Court found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was ‘properly payable’ to the claimant.

The Labour Court was required to decide whether the claimed unlawful deductions were in fact properly payable to the Mr. Kiely.

What is a ‘Disciplinary Process’?

The company policies and procedures, with respect to disciplinary processes, provided that:

“The Company will attempt to resolve any complaint in an informal manner by way of private discussion between the employee and his/her immediate supervisor. However, where such discussion fails to adequately resolve the issue or where the matter is deemed as gross misconduct, the Company’s disciplinary procedure will be invoked.”

“At every state in the procedure the employee will be furnished with details of the allegation(s) or complainant(s) against him or her and will be given the opportunity to respond fully to such allegations(s) or complaints(s) before any decision is taken.”

“Where considered necessary by the Company, details of the allegation(s) or complaint(s), including witness statements, may be provided in writing to the employee in advance of any disciplinary meeting.”

“At all stages the employee will have the right to be accompanied during any disciplinary meetings by a fellow employee or a representative of his/her trade union (if any) or other employee representative.”

An incident previously occurred that led to Mr. Kiely being spoken to, on 22 January 2019.

The meeting of the 22 January 2019 was held via a conference call.

It was not disputed that Mr. Kiely was not informed of the purpose of the meeting.

Mr. Kiely was not presented with allegations of any breach of procedures prior to the meeting.

Mr. Kiely was not advised of the need to have a representative present at the meeting.

The WRC and Labour Court concluded, that in all those circumstances, it is difficult to see how that meeting could be considered as invoking the disciplinary process.

At best it could be described as a discussion in accordance with the policies and procedures of the company.

The Labour Court was of the view that the policies and procedures were highly significant in this situation, as they were very specific on the point at which the disciplinary procedure is invoked, i.e., the point at which an employee could be considered as being the“subject to the company’s disciplinary procedure”.

As the matter was resolved in the discussions which took place on 22 January 2019, the Labour Court was quite satisfied that Mr. Kiely was not subject to the company’s disciplinary procedure.