WRC case satisfies McKelvey ‘exceptional circumstances’ test for legal representation
A recent decision of the WRC provides helpful guidance in relation to the ‘exceptional category’ of circumstances in which an employee should be allowed to avail of legal representation in a disciplinary process, in a non-unionised environment.
While no reference is made to the decision of the Supreme Court in McKelvey v Irish Rail  IESC 000, which was delivered four weeks before this decision (see our client briefing on that decision here), the WRC decision follows the test set out by the Supreme Court, i.e. that an employee will only have a right to legal representation in disciplinary processes in exceptional circumstances.
In this context, it is also interesting to note two recent decisions of the WRC (see our briefing here), which may signal an emerging trend that, notwithstanding the ‘exceptional circumstances’ test for legal representation, an employer who fails to allow an employee to be represented by a trade union official in a disciplinary process may be unable to defend unfair dismissals claims on procedural grounds.
The claimant, who commenced employment with the Company in 2009, was its Head of Operations and managed approximately 40 employees at the time of his dismissal for gross misconduct in September 2018, arising from his membership of, and participation in, a WhatsApp group with several colleagues.
The claimant argued that the decision to terminate his employment was unfair and unreasonable, and that it was reached without proper consideration or fair procedures being followed.
The WRC upheld the claim and awarded the claimant €7,000, equivalent to one month’s remuneration. The award was reduced to reflect the claimant’s contribution to his dismissal by reason of his participation in the WhatsApp group.
Content of WhatsApp group messages
The WhatsApp group was formed eight months prior to an anonymous disclosure being made to the Company, by another member of the group, in relation to its contents. The claimant had been added to the group by a colleague and, as he was the only member of the group based in Ireland, felt pressure to ‘fit in’ and contribute to the group. Despite being uncomfortable with the nature of the messages sent into the group (which referred to other employees of the Company in highly derogatory terms), and actively seeking to change the focus of the group, the claimant felt that leaving the group would be detrimental to his career as he would be ‘out of the loop’, since the group provided a platform for the Company’s managers to network, share ideas and indeed to ventilate issues that arose from time to time.
Internal investigation and disciplinary process
Following the anonymous disclosure, the Company commenced an investigation into the WhatsApp group. Both of the investigators selected to look into the matter were among those mentioned in unflattering terms in the group messages. The claimant argued that:
- the investigation report was dismissive of his complaints of racial abuse and slurs, aimed at him, by UK-based members of the group;
- at no point during the investigation and disciplinary process had the content of the messages in the group been put to him in any meaningful way; and
- it had never been explained to him how the messages (either individually or collectively) were in breach of the Company’s Social Media Policy and Code of Conduct, or how they could amount to gross misconduct.
In addition, the claimant contended that no specific allegation was ever put to him by reference to the Company’s policies, that he had not been given the opportunity to defend himself, and that no reference had made to the employment legislation being relied on by the Company.
The claimant further argued that he had been denied the opportunity of availing of legal representation despite repeated requests for same, and as the WRC summarised it, “was denied any sense of his entitlements under the law in order to defend the claims of his employer.” The claimant contended that the Company’s offer to facilitate the presence of a colleague or trade union representative was worthless, in circumstances where the content of the WhatsApp group was of an extremely sensitive nature, and where the Company was non-unionised.
The claimant pointed to his length of service with the Company, his untainted employment record and strong performance record, and argued that all credit built up by him throughout his employment had been “set at naught”. He argued that his dismissal bore all the hallmarks of a decision made in advance of the process, with the process being invoked to ensure that the decision previously made was implemented. He contended that it had been open to the Company to impose a lesser sanction and that the sanction imposed was disproportionate, unjustifiable, and fell outside the “band of reasonable responses” of an employer.
The claimant was informed of his dismissal by phone on 28 September 2018, and was told that an email to that effect would be sent to him the following day. However, before the confirmation email was sent to the claimant, and without him being afforded an opportunity to appeal his dismissal, an internal communication was issued to all employees informing them of the claimant’s dismissal. In addition, the Company also wrote to clients of the claimant to inform them that the claimant no longer worked for the Company due to “personal behaviour that is inconsistent with our values and has no place in our organisation”.
The Company argued that the dismissal was not unfair, as it resulted from extremely serious breaches by the claimant of its Social Media Policy and Code of Conduct, and behaviour which was entirely unacceptable and improper, and at variance with the standards expected of employees. The Company contended that it was entitled to form the view that the claimant had committed gross misconduct and that dismissal was an appropriate sanction. It contended that the claimant had been afforded every opportunity to address the allegations made against him and that the requirements of natural justice had been met. The Company also argued that, to the extent that the WRC deemed that there had been any procedural unfairness (which the Company denied), those shortcomings would not necessarily render the dismissal unfair. The Company also submitted that, without prejudice to its denial that the dismissal was unfair, the claimant had contributed to his dismissal to such an enormous extent that no award of compensation ought to be made.
The WRC concluded that there were procedural defects in the manner in which the claimant’s employment had been terminated. While all seven members of the WhatsApp group had been dismissed by the Company, the Adjudication Officer noted that the claimant’s activity in the group was roughly 15% of that of other members.
The WRC noted that it “…may not have been best practice or prudent for the Company to have [the two investigators] undertake [the investigation]” given that both had been referred to in the group in derogatory terms. It also accepted the evidence of the claimant that, as the only Irish-based member of the group, he felt pressure to fit-in and contribute to the group, despite his unease at the nature of the subject matter of the group.
The WRC found that the Company acted unreasonably in issuing the internal communication to its employees regarding the claimant’s dismissal, prior to an appeal process being initiated. Moreover, it described the Company’s letter to the claimant’s clients as “objectionable”, and concluded that the Company’s behaviour was not what one would expect from a reasonable employer. It agreed with the claimant that the timing of both communications was unfair and unreasonable, and bore all the hallmarks of a pre-ordained outcome, in circumstances where appeal mechanisms had not been exhausted.
The WRC also concluded that the Company had not attributed sufficient weight to mitigating circumstances: the claimant’s clean disciplinary record, regular 60-hour weeks, and record of growing turnover by 47% since becoming a sales manager in 2014. The WRC found that the Company had failed to act reasonably by omitting to consider whether the decision to dismiss was proportionate to the gravity of the complaint and the effect of dismissal on the claimant.
Right to legal representation
The WRC placed emphasis on the fact that the claimant “strongly” requested to be allowed bring legal representation to the disciplinary (and subsequent appeal) meeting, and was informed by the Company that he could only have a colleague or trade union representative in attendance with him. The WRC noted that the Company was not unionised and, given the sensitive nature of the issues involved, accepted the claimant’s argument that he was not in a position to bring a work colleague to the meetings.
The WRC referred to the Supreme Court judgment in Burns v Governor of Castlerea Prison, and the factors which serve as “starting-off points” from which to consider whether legal representation should be permitted, namely:
- the seriousness of the charge, and the potential penalty;
- whether any points of law are likely to arise;
- the capacity of the person to present his own case;
- procedural difficulties;
- the need for reasonable speed in making the adjudication; and
- the need for fairness as between the parties.
The WRC concluded that the allegations were very serious and both the potential penalty of dismissal and the potential for reputational damage were significant. In addition, the Company was operating under UK employment law and dealing with protected disclosures under the UK whistleblowing regime. The cumulative effect of the complexity of the issues brought the matter within the “exceptional category” of circumstances where legal representation should have been permitted.
This case illustrates the importance that will be placed on legal representation, and the denial of the opportunity to avail of same, where the circumstances require it. While every case will be different, employers should take an objective view of whether the matters that fall to be decided in an internal process are such that the employee should be permitted to avail of legal representation. In forming this objective view, the six factors listed in the Burns decision above remain of seminal importance.