Onus is on Employer to Prove Misconduct in Dismissal Case

This case concerns an appeal by the employee of a Rights Commissioner recommendation.

The employee was a general operative with the employer since 2002.
In January 2004, the employer became aware of clocking-in irregularities of the employee and a colleague.
An investigation was conducted, rather than bringing this to the attention of the parties.
Following the investigation, in February 2004, the employee was called to the Production Manager’s office to explain twelve discrepancies in relation to his clocking.
The employee was not afforded representation at this meeting. He suffers from literacy problems, of which the employer was aware, but stated that the discrepancies may have been due to his clocking swipe going missing. However, the old-style clock-in system had been replaced by a finger-print based system.
He accepted that he had received increased pay as a result of the clocking discrepancies and was suspended with full pay pending further enquiries.
The employee was advised by letter dated 12 February 2004 to attend a disciplinary meeting on 17 February 2004.
The letter warned of the possibility of dismissal but did not contain specific allegations of wrong-doing, or advise the employee of his right of representation. The employee attended, but was unable to explain the discrepancies.
On the 18th February the employee was summarily dismissed by letter on the basis of clocking discrepancies, but was not offered any right of appeal.
The employee took his claim to the Rights Commissioner who gave a recommendation in favour of the employer. The employee appealed the decision to the Employment Appeals Tribunal (EAT).
The EAT determined that a full investigation was not carried out by the employer and that the employee was not informed of any right of appeal to the decision.
The Tribunal stated that while the employee could not offer an explanation for the discrepancies, the onus was on the employer to show misconduct on the employee’s part. The employer had failed to do so.
The Tribunal overruled the Rights Commissioner’s recommendation.
However, the employee had shown no attempt to mitigate his loss, which was reflected in the Tribunal award of €3,000.00 as a result of the unfair dismissal.
It is arguable that the Tribunal decision goes beyond previous decisions, in that it has always been the case that an employer must only have reasonable grounds to sustain its belief that the employee has misconducted himself, but did not in fact have to “prove” the misconduct.
Case: Mongan v C&D Foods Ltd, Employment Appeals Tribunal

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