18 Jul Beauty Therapist Retains 10k Award in Appeal

In this recent Labour Court Determination(UD1835), following an appeal by a Beauty Company against an Adjudicator’s decision to award a former employee €10,000, there are lots of learning points for employers on how to run disciplinary procedures correctly, as the Labour Court dismissed the appeal due to a number of procedural errors on how the disciplinary process was run.

A Beauty Clinic in Dublin appealed the decision of an Adjudication Officer who had determined that their dismissal of their former employee was unfair and had awarded her €10,000 compensation. The employee had been employed as a Beauty Therapist for almost four years from May 2012 until March 2016, before being dismissed for gross misconduct for contravention of the Company’s Social Media Policy by accepting clients as friends on Facebook, for removing company property from the premises without authorisation, for discounting treatments without approval resulting in loss to the Company and for selling her own products on Company premises that were similar to Company products. Following an investigation and disciplinary process, the employee was dismissed, and was advised that she had the right of appeal against the decision within a specified time frame. The appeal was submitted a few days late and was ruled out of time and no hearing on the appeal took place.

The employee outlined that she had been working part time since May 2015 with the agreement of her employer, in order to establish and operate her own business, which did not compete with the Company, as it was not located in the same geographical area. The employee requested that she be allowed to bring a representative who was not an employee of the Company to the disciplinary meeting called, but was refused, even though she had been told that her fellow employees had made statements against her and consequently she would be unable to identify a work colleague to bring to the disciplinary meeting with her. The employee said she had sought to appeal the decision to dismiss her, but her appeal made some days outside the time period prescribed, was disallowed notwithstanding the clear reasons supplied for the delay in the submission of the appeal. The employee gave evidence that she could not recollect any conversation regarding the Social Media Policy of the Company that was meant to have taken place in 2013, but did confirm that after winning an award in 2014, some clients friended her on Facebook and she never deleted those contacts. The employee further stated that the practice of making discounted transactions on the till was well known and accepted throughout her period of employment. The employee disputed that she had sold her own products in competition to the Company, and said it was a gift to a client who had assisted her with some domestic matters.

At the Labour Court hearing the Company confirmed that they had only notified the employee on the day of the investigation meeting that it was taking place. It was also confirmed that none of the matters under investigation had been raised with the employee before the investigation meeting, and that witness statements which had been gathered were only subsequently shared during the disciplinary meeting.

The Court determined that whilst the Company clearly viewed the conduct of their former employee as being serious and injurious to it’s business, it was also required to ensure that the Company had adhered to due process and applied fair procedures, in how it dealt with the alleged contraventions and the subsequent decision to dismiss. The Court outlined it’s function was to determine whether the response of the Company to the facts as established by it, were within the range of responses one might expect from a reasonable employer. The Court accepted that as a small business, the capacity of the Company to fully separate the various stages of the investigation, disciplinary and appeal procedures were limited by the availability of personnel at an appropriate level. However, it found that in this instance, the person, who conducted the disciplinary phase of the procedure was an active participant in the process of investigation, albeit the investigation was ostensibly being carried out by another person, with an unacceptable degree of interaction following the investigation and throughout the disciplinary process between the investigator and the person carrying out the disciplinary process. The Court also noted notwithstanding that a person external to the business was appointed to hear the appeal, the decision to reject the employee’s appeal on time grounds was made jointly by the investigator, the person who carried out the disciplinary process and the person appointed to hear the appeal. That rejection of the appeal was then communicated to the employee by the person who conducted the disciplinary process and not by the person appointed to hear the appeal and this raised significant questions as to the independence of the appeal process from the other stages of procedure.

The Court also noted that the Company did not accommodate the employee’s request for external representation at the disciplinary stage, notwithstanding that a number of her colleagues had made statements against her, which they considered in a small business, to have elevated the significance of the decision not to allow representation, to a level that was detrimental to the employee.

In summary, the Court took the view that taken together, the level of crossover and interaction between personnel at all stages of the investigation, disciplinary and appeal processes had “fatally imperilled” the decision to dismiss the employee, and that the dismissal was therefore procedurally unfair, notwithstanding that the employee through her behaviour, contributed significantly to her dismissal. There were also other contributing procedural errors as outlined above, such as inadequate notice of meetings and failure to share relevant documentation in advance.

On reviewing the facts of the case, whilst it could be reasonably viewed that some of the underlying reasons for the dismissal in this case could have been robust enough to justify the dismissal, once again some basic mistakes have cost the employer, with the Labour Court deciding that the €10k awarded by the Adjudication Officer should remain in place.

Some of the basic lessons for employers to be taken from this case:

• Publish guidelines on what practices are allowed at work and get policies signed off by employees:
• Ensure that adequate notice of investigation/disciplinary meetings is given:
• Ensure witness statements are shared prior to disciplinary meetings:
• Consider allowing external representation at meetings, if limitations are placed due to size of business or involvement of colleagues as witnesses;
• Ensure appropriate separation of investigation, disciplinary and appeal stages;
• Consider reasons for late submission of appeal and what is reasonable in circumstances.