Tip of the Week – Proportionality considerations and risks of re-engagement of former employees

Facts

In the case of ADJ-00052619 (Link Here), the Workplace Relations Commission (WRC) Adjudication Officer (AO) found that the Respondent acted disproportionately in dismissing a warehouse operative for gross misconduct when he called his manager "useless".

Initially, following a disciplinary process, the Complainant received a final written warning. On appeal, the appeals officer deemed the sanction too lenient and elevated it to dismissal for gross misconduct.  

Decision

At the heart of the decision was whether the dismissal fell within the “band of reasonable responses” available to the employer. The AO referenced Edward Boylan v United Parcel Service of Ireland Limited [UD464/2011], where the complainant had referred to his manager as a “moron.” The Employment Appeals Tribunal (EAT) held that dismissal for an isolated incident of that nature was disproportionate, given the other options available.

Ultimately, the AO in this case held that a single verbal interaction did not justify a loss of trust in an employee of such long standing (17 years of service) and concluded that dismissal was an excessive response.

It was also the view of the AO that the Complainant’s initial sanction of the final written warning should have remained and should not have been elevated to a dismissal, particularly in circumstances where the rationale for elevating the sanction to dismissal was not justified or explained "to any degree of satisfaction".

Redress

The next consideration for the WRC related to the form of redress. The Complainant asked for re-instatement, which the Respondent opposed.

Ultimately, the WRC directed for the Complainant to be re-engaged, together with a final written warning to remain on the Complainant’s file from the date of re-engagement for one year. In reaching this decision, the AO was guided by the Supreme Court’s ruling of An Bord Banistíochta, Gaelscoil Moshíológ v the Labour Court [2024] IESC 38 and noted the size of the Respondent's enterprise was a significant factor in her decision to direct re-engagement. 

Commentary

A few high-level thoughts from our Team on this decision are outlined below:

1. This decision highlights the importance of proportionality in disciplinary sanctions and the need for employers to consider all circumstances, including length of service and alternative sanctions to dismissal.
2. It is well-established that the WRC and Labour Court will look at the circumstances of each case and will decide whether the response of the employer falls within the band of reasonable responses. In this case, the AO interestingly noted that what may be reasonable for one employer may not be reasonable for another. She noted that a large employer may have the resources to consider alternatives such as redeployment, which may not be feasible for a small business.
3. Although in this case the AO found that the process followed was procedurally fair and that the process did not need to be “a counsel of perfection”, the dismissal was still deemed unfair due to the disproportionate sanction applied. This means that even if your process is fair or is near-perfect (if there is such a thing!), if the sanction applied is disproportionate, a Complainant is likely to succeed in an unfair dismissal claim.   
4. This case serves as a reminder of the possibility of any one of the three forms of redress under the Unfair Dismissals Acts: compensation, reinstatement or re-engagement.
5. The size of the business will be relevant when considering reinstatement and re-engagement. The larger the business, the more chances reinstatement or re-engagement may be directed.
6. In addition, this case illustrates that if an employer wishes to impose a harsher sanction at appeal stage, the reasons for this should be explained.

 The above is for general guidance only and is not intended as professional advice. Advice should always be taken before acting on any of the issues identified.

Written by: Greta Siskauskaite