Two employees (shop stewards) who were dismissed because they allegedly mislead another 35 of their colleagues and encouraged their participation in unofficial and illegal industrial action in the context of a transfer of undertaking were recently awarded €261,000 for unfair dismissal.
Transfer of Undertaking and Work Stoppage
In December 2009 a transfer of undertaking involving 37 employees took place. As part of the transfer, the Labour Court awarded that the transferor pay all of the employees involved in the transfer a lump sum payment of €5,000 in lieu of privilege terms and conditions.
The Transferor had not paid the money to employees by the date of the transfer and the employees became concerned.
On the day of the proposed transfer, a meeting was convened and a decision was taken by the workforce to refuse to work until the situation was clarified.
The Transferee company was in the difficult position that their (new) workforce were refusing to drive their trucks and they could not control payment of the money owed by the Transferor (who was also their client).
The Transferee suspended all involved for their refusal to work and an unseemly protest ensued outside the gates of the company.
The Transferee prevailed on the Transferor to issue a letter to the employees giving them a degree of comfort in relation to the ex-gratia payment they were due and thereby getting them back to work.
Disciplinary Investigation
The Transferee conducted an investigation into the circumstances around the events. Statements were taken from all 37 participants.
Arising from this, two Shop Stewards (part of the 37 affected employees) were subjected to the disciplinary process and this resulted in the termination of their employment by reason of gross misconduct.
The Shop Stewards request to have legal representation at the Disciplinary Hearing was denied.
Furthermore, the statements from the 37 employees were not made known to the two Shop Stewards.
Employment Appeals Tribunal
A case was subsequently taken to the Employment Appeal Tribunal by the two employees who had been dismissed and the outcome was an award of €261,000 in their favour.
The Tribunal concluded:
• There was insufficient evidence that the two employees who had been dismissed had misled their colleagues or incited them into illegal activity and
• Legal representation was unreasonably denied to the two employees
Lessons
Evidence gathered as part of the disciplinary investigation should be made available to the employees involved in the disciplinary process.
Where the outcome of a disciplinary process is likely to be dismissal, the affected employee(s) request for legal representation is reasonable.
Case: Desmond Ward v Stobart (Ireland) – UD868/2010 & Michael Carroll v Stobart (Ireland) – UD 1104/2010
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