1. Introduction
The case of Wim Naude v University College Cork (ADJ-00042625) is included in the WRC’s 10-Year Anniversary Case Report as a leading example of a dismissal that, although nominally founded on substantial grounds, was vitiated by a fundamental procedural failure: the dismissal had been effected by a person who lacked the authority to do so.
The case underlines the importance, under Section 6(7) of the Unfair Dismissals Acts 1977 to 2015, of the manner in which the employer arrives at and communicates a dismissal decision. Procedural deficiencies of this kind — a dismissal by the wrong person, in the wrong way, or following the wrong process — may render an otherwise substantively justifiable dismissal unfair.
[gdlr_core_space height=”30px”]
2. Legislation and Case Law
Section 6(1) of the Unfair Dismissals Act 1977 establishes the presumption that the dismissal of an employee is unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. Section 6(7) of the Act provides that, in determining whether a dismissal is unfair, regard may be had to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal, and to whether the procedures applied are fair.
The procedural requirements applicable to disciplinary dismissals are set out in the WRC Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146 of 2000). The Code requires the employer to identify the issue clearly to the employee, to investigate the matter fairly, to allow the employee an opportunity to respond, to allow the employee to be accompanied, to take the decision having regard to all the information, and to allow a right of appeal.
The decision-maker must have the authority to dismiss. The principle that authority is essential to a binding dismissal is well-established in the common law and has been applied by the WRC and Labour Court in a series of cases. An employee who is purportedly dismissed by a person without authority is in an ambiguous position: the dismissal may be ineffective in law, or, if effective, may be unfair by reason of the procedural irregularity.
The Labour Court in JM v Department of Education (UDD2155) and the WRC in similar cases have emphasised that an employer relying on a dismissal as the basis for the termination of employment must be in a position to demonstrate that the decision was taken by a person with the requisite authority, following the appropriate procedures, and on the basis of an adequate investigation.
3. Decision
The Adjudication Officer considered the procedural history of the dismissal and the question of authority. The factual matrix involved the role of the person who had purportedly dismissed the Complainant, the scope of that person’s authority, and the process by which the decision had been taken.
On the question of authority, the Adjudication Officer found that the person who had purported to dismiss the Complainant did not have the authority to do so under the Respondent’s governance structure. The dismissal was therefore procedurally irregular at its most fundamental level.
The Adjudication Officer further found that the procedural failures extended beyond the question of authority. The investigation had been inadequate, the opportunity for the Complainant to respond had been deficient, and the decision had been taken without regard to material considerations.
On the basis of those findings, the Adjudication Officer concluded that the dismissal was unfair within the meaning of Section 6 of the 1977 Act. The appropriate redress was determined by reference to Section 7.
4. Takeaway
The case is a useful and important reminder that procedural integrity is fundamental to a lawful dismissal. An employer who has good substantive grounds for dismissal but who fails to follow a fair procedure — including by purporting to dismiss through a person without authority — will face a successful unfair dismissal complaint.
For employers, the practical lesson is that the governance of dismissal decisions must be properly defined and observed. The person responsible for taking the decision should be identified in advance, should have express authority under the employer’s governance documents, and should not delegate the decision informally to a subordinate. Where the employer is a public body or large organisation with formal delegated authorities, those delegated authorities should be checked at the outset of any dismissal process.
Employers should also be alert to the dangers of informal dismissal communications. A peremptory “you’re done” conversation by a manager without authority, even if subsequently ratified by a senior decision-maker, is likely to be treated as the operative act of dismissal for the purposes of the Acts and may invite a successful complaint.
For employees, the case is helpful authority that procedural failures may be sufficient on their own to ground an unfair dismissal complaint. Practitioners should examine the governance and authority structure of the employer and identify any failure to observe internal procedures. Where the dismissal was effected by a person without authority, that fact alone may be a powerful basis for the complaint.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
Connect: @CrushellLaw or www.wordpress-576593-6594403.cloudwaysapps.com
