A recent decision of the Workplace Relations Commission, Labour Court awarded an employee €35,000 under unfair dismissal legislation. The basis for the decision was that similar conduct by another employee of the employer was overlooked and did not result in any disciplinary investigation or sanction.
In essence, the employer failed to treat the employees consistently, or to distinguish the conduct of both employees to justify the difference in treatment.
Mr Burke was employed by Nurendale t/a Panda Waste for over 7 years as a driver of a refuse truck. Panda Waste operated a refuse collection for commercial and domestic waste. Mr Burke was dismissed for collecting waste from two premises that were not clients of Panda Waste, in return for payments. This resulted in financial loss to Panda Waste.
When the allegations were put to Mr Burke by Panda Waste he admitted that the arrangement to collect refuse from non-customers was in place. However, Mr Burke alleged that he was involved in the arrangement at the instigation of another employee, referred to as JW. JW was a brother of the owner of Panda Waste and had previously driven the route that Mr Burke drove.
When Mr Burke took over the route from JW, JW advised him of the arrangement and instructed him to continue it. Given his family ties to the employer, JW, Mr Burke alleged, commanded "considerable authority" and Mr Burke readily complied with the instructions.
As part of the investigation, a statement was introduced from one of the businesses from which Mr Burke collected refuse for cash. It confirmed that Mr Burke collected refuse for cash from it but also that JW had previously been involved in the arrangement.
JW was not interviewed as part of the investigation and he was not subject to any disciplinary investigation in relation to his involvement in the arrangement.
Mr Burke was dismissed on the grounds of gross misconduct.
Outcome – Importance of Consistency
In finding for Mr Burke, and awarding him €35,000, the Labour Court stated that:
"At its most basic level the requirements of fairness in employment dictate that similar situations be treated similarly. It follows that where an employer acts inconsistently in responding to misconduct, a dismissal can be rendered unfair."
1. Employers should not try to make an example out of an employee. In reaching its decision, the Labour Court referred to the High Court decision of Bank of Ireland v O'Reilly . In O'Reilly, the High Court was highly critical of Bank of Ireland dismissing Mr O'Reilly in an apparent effort to make an example of Mr O'Reilly for conduct that was widespread throughout the bank at the time.
2. If allegations against other employees arise in the context of an investigation, these should be followed up with as part of the investigation.
3. Information gleaned as part of an investigation should only be disregarded once it is clear that it bears no relevance to the investigation underway.
4. While employers must treat similar situations similarly, it is always open to an employer to distinguish situations that may initially appear similar on the face of them. For example, an unintentional once-off breach of a policy may not justify the same sanction as an intentional repeated breach, or an employee with a clean record may receive a lesser sanction than an employee on a final written warning for similar conduct.
  IEHC 214
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