Unfair Dismissals Act

Standard of Proof for Unfair Dismissal Cases

Introduction

By way of background, the employee was dismissed for serious misconduct from a Civil Service clerical position in a high profile, ultra-high security State Service. Despite all guarantees of confidentiality, it was strongly argued by the employee’s legal team that it was virtually impossible to keep this dismissal a private matter. The re-employment prospects for the employee would be challenging, if not to say, bleak. It was alleged to be a “doomsday” situation for the employee. He was effectively unemployable (see An Office Worker -v- A Government Department ADJ-00026339).

Balance of Probabilities

The employee’s legal team argued that in a “doomsday” situation, such as this, a much higher standard of proof is required of an employer. A simple reliance on a Civil law standard of “balance of probabilities” was not appropriate rather a formula closer to the Criminal standard of “Beyond all Reasonable Doubt” was required. This was referred to by the employee’s legal team as “the third or intermediate standard of proof.”

Intermediate Standard of Proof

The issue had particular relevance to this case as the major investigation relied upon by the employer was based on conclusions derived on a Balance of Probability basis. The employee argued that these conclusions were not legally sound and fell short of a required high standard of natural justice and fair procedures. 

Legal precedents from the cases of Georgopoulos v Beaumont Hospital Board [1993] ELR 246 and Kelly v Minister for Agriculture [2012] IEHC 558 were cited as supportive of the case. It was advanced that Mr. Justice Hedigan in the Kelly case referred to above had accepted that where an employee faces a threat of dismissal, his or her employer will “need to prove guilt on the basis of a higher degree of probability.”

In this case and in view of the background which would never be capable of being kept confidential, according to the employee, the dismissal was a “doomsday” decision. In this context, a reliance on a simple balance of probabilities formula to justify a dismissal which would have profound consequences for the employee was, it was argued, in itself a gross injustice.

Arguments against a Higher Standard of Proof

The employer’s legal team strongly contested the concept of a “Third level of Proof” and cited considerable case law from the Irish Supreme Court. The cases of Banco Ambrosiana SPA v Ansbacher and Co Ltd, [1987] ILRM 669, Georgopoulos v Beaumont Hospital Board [1993] ELR 246 and Hazel Lawlor v The Planning Tribunal [2010] IR 270 were advanced in support.

In summary, these Supreme Court cases did not find in favour of an intermediate “Third level of Proof” between the ‘Civil Balance of Probability’ and the ‘Criminal Beyond Reasonable Doubt’.



In an employment context, the comments of Finlay CJ in the Banco Ambrosiana case were advanced by the employer.

If, as has been suggested, the degree of proof of fraud in civil cases is higher than the balance of probabilities but not as high as to be (as is required in criminal cases) beyond a reasonable doubt, it is difficult to see how that higher degree of proof is to be gauged or expressed. To require some such intermediately high degree of probability would, it was argued by the employer, introduce a vague and uncertain element, just as if, for example, negligence was required to be proven, in certain cases to the level of gross negligence.

Also, in the Hazel Lawlor v The Planning Tribunal [2010] IR 270 case Mr Justice Murray stated that

“In principle, evidential requirements must vary depending on the gravity of the particular allegation. This is not to adopt “the sliding scale” of proof advocated by counsel for the applicant, but rather to simply recognise, as an integral part of fair procedures, that a finding in respect of a serious matter which may involve reputational damage must be proportionate to the evidence on which it is based.

The employer's legal team summarised their case as being one that recognised that a major finding of, in this case, dismissal, required that fair procedures and natural justice be followed at all times but that the final conclusion had to be based on the balance of probabilities and not any intermediate “third standard” standard veering toward the Criminal level of proof. This position had been clearly set out by the Supreme Court.

Determination of the WRC

The plain facts of the case are without dispute. The finding of dismissal is of profound negative consequences for the employee.

However, none of the evidence and in particular the Supreme Court case law predicates or requires that normal well-accepted standards of Balance of Probability in employment cases be especially supplemented and a “Third Standard” be introduced.

To follow Ms Justice Finlay comments, quoted above, in the Banco Ambrosiana case the idea of a “third standard” would be fraught with plain difficulties. 

The only realistic option is that parties have to look to basic and well-accepted tested Legal standards and as always in an employment Law case natural justice is paramount among these.

In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 37 Flood J. stated that:

“Where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

1. The complaint must be a bona fide complaint unrelated to any other agenda of the [employer].
2. Where the [employer] is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4. The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.
5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

The basic principles referred to by Mr Justice Flood have been set out in SI 146 of 2000 - Code of Practice on Grievance and Disciplinary Procedures.

From a careful study of the voluminous evidence presented it was clear that natural justice had been observed in this case. 

Having studied the positions and supporting evidence presented, the WRC was happy that the evidence did not support a sustainable argument, by the employee’s legal team, to require the Adjudication depart from the normal Balance of Probability standards.

The request to dismiss the case from the beginning on the basis that a higher “Third level” Standard of Proof was not achieved by the employers was not sustained.

On all these grounds the WRC allowed the case to proceed.

Proving a Dismissal is Fair

The case of A Tanning Salon Worker v A Tanning Salon (Adjudication Reference: ADJ-00013887) provides a useful summary of the standard of due process and fair procedure expected from an employer prior to the dismissal of an employee.

The complainant was sacked for closing up early on two occasions and claiming payment for the time not worked. She alleged no fair procedures were applied prior to her dismissal.

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 (6) of the Act states;

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

The burden is therefore on the employer to demonstrate that the dismissal is fair.

The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;

• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

It was clear that the respondent failed to afford the complainant proper procedures in dismissing her.  She was not advised before the meeting held with of her of the purpose of the meeting nor of her right to be represented and therefore was not in a position to respond properly to the allegations. She did not receive an impartial hearing as is evidenced by the fact that the manager had a pre-prepared letter of dismissal ready to give her and had clearly made up her mind on the issue before the meeting. The dismissal was therefore unfair and was awarded €1600 in compensation.

What is the Compensation for a Successful Unfair Dismissal Claim?

In general, an employee will seek compensation for their loss of earnings between the termination date and their taking a new role, in an unfair dismissal claim. Section 7(2) of the Unfair Dismissals Act sets out the factors which should be considered when determining the amount of compensation to be given to an employee who successfully brings and unfair dismissal claim. These factors include whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. 

An Adjudication officer will also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(See: A Lending and Business Development Manager v A Credit Union (Adjudication Reference: ADJ-00013116))

Reasonableness of the Employer’s decision to dismiss an Employee

In A Sales Assistant v A Discount Retailer (ADJ-00017060), several previous cases at the Employment Appeals Tribunal, the Labour Court and the WRC were submitted in support of the reasonableness of the employer’s decision to dismiss an employee following a physical altercation.

Hevey v Foley Packaging, [2005] 6 JIEC 2101

Mr Hevey was dismissed for assaulting a colleague at work. While the chairman of the EAT found that there were procedural deficiencies in the manner in which Foley Packaging reached the conclusion to dismiss Mr Hevey, he found that the “overall handling of the matter demonstrated the required level of due regard to overall staff safety.”

A Painter v an Employer, ADK-00000136

The employee in this case was dismissed following three physical fights on one day. In his decision, the adjudicator, Mr Hayes found that:

“The nature of the allegations was of such serious import as to go to the heart of the employment relationship and the conclusion reached based on the balance of probability and the Claimant’s evidence in that respect was also reasonable.”

Audrey Burtchaell v Premier Recruitment International Limited, UD 1290/2002 

Ms Burtchaell was dismissed when it was discovered that she had sent derogatory e-mails about her managers and colleagues to various employees. While the circumstances of this case are different to the complaint under consideration here, the chairman concluded that the conduct of Ms Burtchaell was such that:

“…the trust and confidence which has long been established by this Tribunal to be fundamental to proper working conditions and is necessary for the correct administration of any reputable business, to be virtually destroyed to such an extent that the claimant could no longer be retained by the respondent.” 

Burden of Proof in the Disciplinary Process

In this case, the employee concerned failed to engage in the disciplinary process, later arguing that the process was flawed as the employer failed to substantiate the claims made against her.

With respect to the burden of proof in employment law cases, it was noted that the standard was not comparable to that of a criminal enquiry:

"It is submitted that the Complainant was given the benefit of fair procedures. As pointed out by Barrington J. in the Supreme Court case in Mooney -v- An Post [1998] 4 IR 288, an employee is entitled to “…. Be informed of the charge against him and to be given an opportunity to answer it and make submissions …”. Barrington J later states in the Mooneycase that: “It is important to emphasise that the dismissal proceedings were not criminal proceedings and it was not sufficient for a person in the position of the plaintiff simply to fold his arms and say:- “I’m not guilty. You prove it.” To attempt to introduce the procedures of a criminal trial into an essentially civil proceeding serves only to create confusion”. It was submitted that unfortunately, that is exactly what the Complainant did throughout the disciplinary process. She denied the allegations but instead of explaining herself, she demanded that the Respondent simply prove its case and she sought to create confusion by alleging a lack of fairness in the procedure."

In the present case, the WRC was satisfied that the employee was afforded ample opportunity throughout the course of the disciplinary process to provide an explanation or advance a defence in relation to the allegations of serious misconduct but that she failed to do so. In the circumstances, the WRC was satisfied that it was not unreasonable for the employer to conclude that the employee had, in fact, acted in the manner alleged and was therefore guilty of the two acts of serious misconduct which were dealt with during the course of the disciplinary hearing. 

(See: An Accounts Administrator v A Manufacturing Company (ADJ-00018004))

Procedural Defects of Dismissal Process

On 05 December 2016, the employee joined the respondent company as a sales representative. He had previously been self-employed and he said that he brought with him considerable experience of the construction sector. However, over the course of the 17 months that he worked for the respondent, he failed to meet the sales targets that were set for him. The employee’s employment was terminated following a meeting with the group sales manager and the branch manager on 30 April 2018. The employee said that he was not informed about the purpose of this meeting and that he got no warning before he was dismissed. He claimed that his dismissal was unfair and that it was caused by a personality issue between him and his manager.

In her submission to the hearing, the group HR manager confirmed that a meeting was held with the employee and the two mangers on 30 April 2018. She said that this was the last in a series of meetings with the employee over the previous six months and the purpose of meeting with him was to tell him that his employment was terminated. The reason he was dismissed was because his sales figures were not satisfactory. In previous meetings, the branch manager had informed the employee that he was at risk of dismissal if his performance did not improve.

Having considered the evidence presented at the hearing, the WRC was satisfied that the decision to terminate the employee’s employment was not unreasonable. It found however, that the process following by the respondent lacked robustness in respect of procedural fairness. No evidence was submitted at the hearing that the employee had a copy of the respondent’s disciplinary procedure. He should have been informed that the purpose of the meeting on 30 April was to discuss his performance and that his dismissal was being considered. He should have been invited to bring someone with him and he should have been given the opportunity to appeal the decision to dismiss him to a more senior manager. Because of these procedural failings, the WRC found that the dismissal of the employee was unfair.

(See: A Sales Representative v A Builders’ Merchants ADJ-00015319)

 Fair Procedures and Natural Justice of Dismissal Process

The WRC and the Labour Court have consistently emphasized that an employer is required to follow fair procedures before it makes a decision to dismiss an employee.

The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasizes the importance of procedures to ensure fairness and natural justice.

The Code of Practice emphasizes that good practice entails a number of stages in the discipline and grievance process as follows:

• That employee grievances are fairly examined and processed
• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

In this case (see Supermarket Manager -v- Supermarket ADJ-00015765), the employer was represented at the hearing by a member of its HR Department. None of the directors to whom the employee had reported, and who were involved in his dismissal, attended the hearing.)

The dismissal letter was the only documentary evidence in relation to the disciplinary process which was adduced by the employer. The WRC accepted the employee’s assertion that the dismissal letter was only issued after he had sought it from the employer and that, unlike the version which was produced at the hearing, the version which was issued to the employee did not contain a copy of the employer’s Disciplinary Appeals Procedure.

In view of the paucity of documentary evidence adduced by the employer, the WRC found that the employee was not provided with details of any performance issue, he was not aware that he was in danger of losing his job; he was not afforded any of the procedures set out under the Code of Practice on Grievance and Disciplinary Procedures. In conclusion, and having regard to all of the circumstances of the complaint, the WRC found that the dismissal of the employee was substantively and procedurally unfair and the sanction of dismissal was disproportionate. It was the considered opinion of the WRC that the employer showed no regard to the principles of fair procedures and natural justice.

Offer of Alternative Work to Dismissal

The employee, a bar worker, was issued with a letter advising her that her contract would be terminated as the employer proposed to contract out part of the restaurant and bar service of a golf club.  The day after the termination date the employer offered an alternative position to the employee.

According to the employee, there were no notable events leading up to the dismissal, aside from whispers from golf club members, and the employee was not aware that she was to be dismissed before she was handed her notice on the 17 January 2020. There were no written or verbal warnings nor staff meetings preceding the notice period. The bar staff were all given notice letters. They were made aware in these letters that the golf club would be outsourcing the catering services as of the 02 March 2020. They were told that the golf club would also be outsourcing the bar services making their jobs redundant. However, they were later told by a member of the council that the golf club were not outsourcing the bar services. The employee was unsure if she was being retained or dismissed, until she received her notice of 17 January 2020. 

According to the employer, the golf club did initiate redundancies due to reorganisation of the bar and restaurant. However, the employer made efforts to secure redeployment for the impacted employees. At the end of a period of consultation and at the very last minute the employer secured an alternative role for the employee at the end of the notice period.  The redundancy notice was accordingly rescinded, and the employee remained on the payroll until the COVID-19 lockdown.

According to the WRC, it was clear from this exchange that the employer had informed the employee of the position in the golf shop and, based on the employee’s response, was entitled to think that this was acceptable to her. It was also of note that the employer did not remove the employee from the payroll. However, this exchange took place after the termination date. The Club Manager was herself on holiday when the employee returned from holiday and was not in a position to contact her further. The draft letter rescinding the termination of contract was never sent. If the employer needed more time to consider alternatives to making the employee redundant, they could have extended her contract in order to do so.  However, they did not and therefore the employee was entitled to consider the contract terminated on the date indicated by letter of 17 January 2020. The employer had not processed her redundancy at that date and had not rescinded the termination letter. Therefore, the employer had not discharged the burden of proof and the dismissal was unfair.

(See: A Bar Worker v A Golf Club ADJ-00026973)

Time Limits for Bringing an Unfair Dismissal Claim

In A Ministerial Driver v A Government Department (ADJ-00014494), the complainant brought the complaint one-day outside of the required 6-month deadline for filing an unfair dismissal claim with the WRC.

Case law was cited especially the headline case of Cementation Skanska v Carroll, DWT0338 where the Labour Court commented extensively on Time Limits and possible extensions. The Court noted in that Decision that

“it was for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay.”

It was strenuously argued by the complainant’s Union Representative that a mere 24-hour period had elapsed and that the Adjudication Officer should exercise his discretion to allow an extension and thereby bring the complaint into the remit of the Act. The WRC Adjudication Officer disagreed, noting that the complainant’s Union Representatives are not novices and a tactical calculation to delay issuing proceedings does not amount to adequate reasons to grant an extension.