An employer sacking a worker risks a horror show for both sides

What frightens retailers and other small business owners the most? It isn’t rapacious landlords, or incompetent policymakers, or shoplifters, or even the competition. No. Judging from a recent gathering of retailers, what is sure to keep them up at night, to strike an ungodly fear into their palpitating hearts, is a lawyered-up worker in an employment dispute.

Retail Excellence, an industry representative group, held its annual jamboree during the week at the Citywest convention centre in Dublin. For two days, about 2,000 delegates attended exhibitions and meetings covering every possible industry topic you could imagine.

Nothing, however, matched the mood of sheer terror at a plenary session on Wednesday with Tommy Smyth, a human resources consultant. He was advising retailers on how to conduct workplace investigations into staff suspected of errant behaviour, such as dipping the till or pilfering stock.

Smyth, a smooth and confident speaker, opened with an ominous declaration to the employers present that the system is stacked against them. Even if it is obvious that a staff member you sacked is bang-to-rights guilty, he told them, it is your behaviour that will be pored over in excruciating detail if the worker takes an unfair dismissals case.

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Thunder clap

“That’s what we are up against,” said Smyth, pausing for dramatic effect.

The air left the room. If there had been a thunder clap and a burst of smoke from the stage, all to the sinister tones of a Hammer Horror soundtrack, it would hardly have seemed out of place, such was his delivery.

I had been one of the first to arrive for the presentation, taking a seat at the front to take notes. I turned around to gauge the retailers’ reactions to Smyth’s foreboding opening. They were ashen-faced, as stiff as boards. I’m not exaggerating when I say that some of them actually gulped.

Smyth, who advises employers in disputes with staff, is clearly an expert in his field. Over the following 40 minutes, he explained to his audience the difference between simple fact-finding investigations and formal workplace disciplinary investigations where findings are issued.

In a fact-finding exercise, you cannot just presume an employee is guilty, he said. No ambushing is allowed, all evidence must be circulated to the worker beforehand. No judgment. Just note what they say, even if they “blame aliens”.

“That’s the farcical nature of what you’re up against,” he said. The retailers present nodded in affirmation.

Smyth went on to explain that, once you’ve gathered all the information, the process must be handed over to someone else if a formal disciplinary process follows. The fact finder can no longer be involved.

“Be cautious and tactical,” he warned. “It is a beast of a process. You have a head wrecking time ahead . . . You have to have High Court standards . . . You need overwhelming evidence [to sack].”

He discussed ways to get CCTV evidence into the process, allowing accused staff to “cross examine” witnesses against them, bringing in outside help, allowing the employee to have outside representation.

“Never issue a sanction at a meeting,” he cautioned. “You have to be seen to take time to reflect. Proportionality is important . . . The worker’s solicitor will nit-pick . . . The awards [against employers] are scary for ridiculous things.”

With Smyth's presentation bouncing around my head, I flicked through some recent determinations issued by the State's industrial relations machinery, and published on the Workplace Relations Commission website.

False transactions

There was a gym manager who gave his girlfriend and others the codes to gain access after hours: convenient for them but the gym owner wouldn’t be insured. He was even caught backdating their membership records and making up false transactions to justify their attendance.

He sued for unfair dismissal, supported by his trade union, because he said the procedure was unfair. His sacking was upheld.

A warehouse worker who was angry that he hadn’t received a pay rise, and who had been warned for taking unauthorised Christmas leave abroad, was sacked for refusing to move lorries in the yard. He argued that he didn’t have a driving licence and that he was tired. His sacking was upheld.

A part-time hairdresser who had an agreement to work two days per week was sacked because she occasionally refused to work a third shift, when asked to do so on the spot and with no time to arrange childcare. Her sacking was deemed unfair, but she was awarded only €361.

A highly-skilled cocktail bartender who got stressed when the bar was understaffed, and who was said to have barked at customers and other staff, was sacked by a pub group.

It brought in a human resources consultant to run the process. As part of the investigation, they raised an issue around her taking about €7 from the till to go to a shop next door to buy a basin for a blocked sink, and some cloves.

CCTV evidence even showed her returning with a bag from the shop. But, the bar complained, it couldn’t find receipts for the items. Her sacking was deemed unfair and she was awarded €7,500.

These are obviously just a small selection of cases.

It is true that the responsibilities thrust upon employers who seek to sack staff for misconduct are onerous. But that is because the potential ramifications for the worker are equally or more onerous, in proportion to their circumstances.

I have not yet been sacked from any job. But I can imagine that if I was, the feelings of shame, humiliation, grievance, anger and personal despair could be overwhelming. And that’s before you get into the practical impact of a lost salary and the financial risks attached.

It is right and proper that sacking a staff member for alleged misconduct requires employers to conduct thorough, inscrutably fair, bullet-proof investigations with proper procedures and opportunities to appeal.

That is natural justice, not a horror show.

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FOOTNOTE

– Irish Times journalist Fiona Reddan reported vividly this week on difficulties faced by some landlords after the departure of nightmare tenants. Rubbish-strewn rooms; pet faeces indoors; marble bathrooms ruined by hair dye.

It may be a landlord’s market out there when it comes to setting rents and choosing tenants. But the process is not risk free for property investors. There will always be unscrupulous people in any commercial market, and it is inherently difficult to legislate to curb the unscrupulous.

A proposal from one of the interviewees caught the eye, however. PJ McCann, the managing director of Meath-based property agent McCann & Curran, spoke of the occasional difficulties presented by bad tenants.

His solution? A blacklist database of bad tenants, accessible only by landlords, which he characterised as a “Cartell for tenants”, echoing the database on used car histories that is available to potential purchasers.

No mention of a similar one for rogue landlords.

McCann, who says he obtained legal advice on his proposal, has already created the database and hopes to insert clauses into tenants’ leases that would require them to assent to the holding of their information.

It appears a crazy idea when viewed from all sorts of angles.

First of all, what steps would be taken to verify that the negative information was correct? How would those running the database be sure that landlord entries were not mendacious or part of some petty dispute?

How is it fair to operate an effective blacklist of citizens seeking a home, and to which they have no access? Who takes responsibility for the defamation proceedings that would inevitably follow if a homeseeker caught wind of their entry on a blacklist and disputed the accuracy of the negative information?

Anybody who has ever defended a defamation case knows how difficult it is, and that the onus of proof lies with those who make the negative comments. It is hard to think of a more egregious defamation than one preventing you from finding somewhere to live.

Some rights cannot be signed away, and there are few more fundamental rights than your good name – it is constitutionally protected. There is also a swathe of European regulations to combat against unfair contract terms.

You don’t need to have taken silk to make the argument that forcing tenants in a horrendously tight property market to sign up for potential entry on to a secret blacklist, just to be allowed rent a home, is deeply unfair.