Employee Representation in Internal Disciplinary Processes

Introduction

One of the most common queries which our RDJ LLP Employment Team receives is whether or not employees are entitled to bring either trade union or legal representation with them to an internal disciplinary process. We thought it would be useful to set out the legal and practical considerations that arise when addressing this query. In this Insight, we look at the different types of employee representation and explore some practical considerations for employers when navigating a request for legal representation.

Fair procedures are of course a fundamental aspect of any disciplinary process. In the event the outcome of an internal disciplinary process is challenged, it is imperative that the employer is able demonstrate that their process was fair, and in compliance with the principles of natural justice. Ensuring employees are aware of their right to representation during internal disciplinary hearings is an important factor in demonstrating fair procedures were followed.

Type of Representation

1. Legal Representation

There is no automatic right to legal representation in disciplinary hearings set out in either Statute or the WRC Code of Practice on Grievance and Disciplinary procedures (otherwise S.I. 146/2000), hereinafter the “Code of Practice”. The 2019 Supreme Court decision in McKelvey -v- Irish Rail confirmed that an employee is only entitled to legal representation in internal disciplinary processes in “exceptional circumstances”. The Supreme Court set out a useful framework for determining what might constitute such exceptional circumstances and whether legal representation is warranted in a particular case.

The Court confirmed that an overall assessment of the situation is to be carried out, taking into account the following factors: -

i) The seriousness of the charge and the potential penalty.
ii) Whether any points of law are likely to arise.
iii) The capacity of a particular person to present their own case.
iv) Procedural difficulty.
v) The need for reasonable speed in making the adjudication.
vi) The need for fairness as between employees but also as between the employee and the employer.

2. “Employee Representative” – Colleague or Trade Union Representation?

Article 40.6.1(iii) of the Constitution recognises “[t]he right of the citizens to form associations and unions.” While this provision entitles employees to join trade unions, it does not conversely oblige employers to recognise and negotiate with them.

The Code of Practice provides that, in order to ensure compliance with fair procedures, the employee is to be given the opportunity to avail of representation. The Code of Practice defines "employee representative" as “a colleague of the employee's choice and an authorised trade union but not any other person or body unconnected with the enterprise.”

The wording of this definition is slightly ambiguous. The use of the word “and” has led to difficulties in determining precisely what type of representation an employee is entitled to bring to an internal process – particularly in non-unionised organisations – is the employee entitled to bring a trade union representation with them even if the organisation does not recognise the trade union? Unless the internal policy in place in the organisation provides otherwise, employers may provide only for work colleagues to accompany employees to internal meetings. While this practice is generally acceptable, it is worth noting the slight statutory ambiguity that exists which could allow an employee to argue that they should have been allowed to bring an external trade union representative with them.

Practical Considerations

Employers frequently deal with employee requests to have legal representation or trade union representation present at internal disciplinary hearings. How should employers approach these requests?

The starting point for any employer will be the relevant policy or procedure, such as the Grievance and Disciplinary Policies and Procedures. These internal policies and procedures will govern how internal disciplinary matters are dealt with. Once the Company’s internal policies and procedures are in conformity with the Code of Practice outlined above, they can rely on same for the purposes of refusing requests for representation that fall outside of what is provided for in the policies and procedures.

It is important that internal policies and procedures are applied uniformly and consistently as between employees and any deviations should be carefully considered to avoid employers creating precedent which was unintended.

It is also interesting to review how the various employment law for a have dealt with disputes involving issues around representation at internal processes.

The Workplace Relations Commission (“WRC”)

An interesting issue arose in the WRC case of An Apprentice -v- An Employer [2023]. The employee sought to have his mother present at his disciplinary hearing as his representative. The employer’s policy provided that the employee was entitled to representation in the form of a fellow employee or a trade union representative only. As such, the employee refused to partake in the meeting and following this, his employment was terminated. The WRC Adjudicating Officer noted that the hearing notice provided to the employee did not refer to the right to representation. Further, given the short notice of the hearing, the employee would have had great difficulty locating any representation. Finally, it was noted that the employer was “entirely wrong” to say that any third-party present for the meeting would not be provided access to the meeting as the Code of Practice clearly provides a right of representation by a trade union official, or a co-worker. The WRC found numerous deficits in the procedures followed by the employer and ultimately found the dismissal to be unfair.

In this case, there were shortcomings in relation to the employee’s right to representation and while it is unclear what weight was attributed to this by the Adjudicating Officer, it was undoubtedly a factor in finding the dismissal was unfair. This case is illustrative of the fact employees should be made aware of their right to representation in the disciplinary hearing notice, and sufficient notice should be given to ensure the employee has adequate time to source a suitable representative.

The Employment Appeals Tribunal

The precursor to the WRC was of course the Employment Appeals Tribunal (“EAT”) and there are quite a number of EAT decisions on the issue of an employee’s entitlement to have legal representation during internal procedures, but much less case law dealing with the issue of trade union recognition and representation.

In the case of Joe Kelly -v- Finlay Breton (Irl) Limited [2007], an issue arose regarding trade union recognition. The employee attempted to attend a reconvened disciplinary hearing with a representative from a trade union that the company did not recognise. The company did in fact recognise another trade union, but the employee was not a member of that union. The company invited the representative to participate as a private individual on behalf of the employee. When the representative refused to act in that capacity, the individual conducting the disciplinary hearing also refused to continue since it was against company policy. In the course of the hearing under the Unfair Dismissals Acts, the claimant alleged that the company was hostile towards his union membership and he had wanted someone to represent him in a fair way. The claimant also stated before the Tribunal that the company refused him trade union representation.

Importantly, in their decision, the Tribunal stated that that:

“it appears to the Tribunal that the real issue concerning the allegations of harassment and racial abuse became clouded with the issue of union recognition by the company which is not a matter for consideration by this Tribunal”.

In the case of Christina Knowles -v- Dunnes Stores [2012] the employee was offered the right to have a representative in the form of a work colleague attend. As part of her claim, the employee stated that she was not offered the right to have a trade union representative present as Dunnes did not recognise the union. The employee was awarded €10,000 given that Dunnes had committed a number of procedural breaches. The Tribunal’s determination made no comment, however, on the issue of trade union recognition and representation.

In Sharon O’Halloran -v- Dunnes Stores [2011], a check out operator was dismissed after she was seen on CCTV serving her husband and not charging him for goods. Dunnes stated that it was company policy that employees do not serve family members. The employee was brought into a meeting to investigate the issues but, when she asked if she needed someone present with her, she was informed that it was just an investigation.

The employee subsequently brought her trade union representative to the disciplinary hearing but she was informed that the company policy was that she could only have a work colleague with her. The meeting did not proceed as the employee did not want to attend without the union involved and the employer would not allow it. The parties reached an impasse, as Dunnes attempted to reschedule the meeting but the employee would not attend without her union representative. The employee maintained that she was denied the opportunity to defend herself with a representative of her choice under S.I. 146/2000. As agreement could not be reached on a hearing, the manager issued a decision to dismiss based on a review of all of the documents and the facts of the situation.

The division of the Tribunal, chaired by Ms Kate O’Mahony, determined as follows:

“The claimant contended that the respondent breached her right to fair procedures in that she was not allowed to have her trade union official to represent her at the disciplinary meetings arranged for 16 March or 12 May in accordance with SI 146/2000 (Code of Practice on Grievance and Disciplinary Procedures) and that she had not been afforded an opportunity to answer the allegations against her. The Tribunal rejects these contentions. The respondent had a disciplinary and dismissal policy in place which is in general conformity with the guidelines in SI 146/2000. In affording the claimant the opportunity to bring a colleague of her choice with her to the scheduled disciplinary meetings, the respondent was in compliance with its own policy and indeed with Clause 4 of SI 146/2000, which defines “employee representative” as including, inter alia, a colleague of the employee’s choice.

A clear line of authorities emanating from the superior courts establish that an employee facing disciplinary action is entitled to the benefit of fair procedures and that what these demand will depend on the employee’s terms of employment and the circumstances surrounding the disciplinary action (See Barrington J in Mooney v An Post [1998] 4 IR 288 at 289 and Laffoy J in Shortt v Royal Liver Assurance Limited [2009] E.L.R. 240 at 251 where the earlier code under the Industrial Relations Act 1990 was before the Court).”

The Tribunal upheld the decision to dismiss the employee for breaches of her employer’s policies and for abusing her privilege card. The Tribunal accepted the loss of trust in the employee that resulted from the breaches of policy.

The Labour Court

The Labour Court, conversely, has in a number of cases directed that grievance and disciplinary procedures should conform to the standard of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000). In addition, while the mechanism for referring a trade dispute to the Labour Court under section 20(1) of the Industrial Relations Act is intended to be a voluntarist system, with recommendations being neither binding nor enforceable, the Labour Court has, in cases where a company has declined to engage, issued a reminder that the Court is empowered to investigate a dispute on an ex-parte basis and to summons witnesses to attend before it.

In the case of Dunnes Stores Tralee and MANDATE CD/05/344, the Labour Court addressed a referral under s43(2) of the Industrial Relations Act following the suspension of three Dunnes Stores employees who claimed that Dunnes refused to allow them to be represented by a union. Dunnes did not dispute this claim but asserted that the Code of Practice allowed the employer to make the choice as to whether employees would be represented by colleagues or union representatives. Furthermore, Dunnes noted that its internal disciplinary procedure, which was incorporated into contracts of employment which had been accepted by the workers, provided for representation in the form of a work colleague only.

The Labour Court ruled that “it is the employee and not the employer who has the right of election as between the modes of representation provided for by the Code of Practice”. The outcome of the case was that the complaint, which had been brought by the union, was deemed well-founded.

However, in the landmark Ryanair decision, Ryanair v The Labour Court [2007] 4 I.R. 199, the Supreme Court was critical of the Labour Court’s approach in dealing with a referral under the Industrial Relations (Amendment) Act 2001 and the Industrial Relations (Miscellaneous Provisions) Act 2004 which Ryanair had alleged was being used by pilots to achieve compulsory trade union recognition ‘through the back door’.

A dispute arose in 2004, when Ryanair introduced a new fleet of aircraft which necessitated the retraining of a number of its Dublin-based pilots. Ryanair would pay the €15,000 cost of the retraining but the pilots concerned had to agree that should "Ryanair be compelled to engage in collective bargaining with any pilot association or trade union within five years of commencement of your conversion training, then you will be liable to repay the full training costs".

The pilots subsequently entered into a dispute with Ryanair over the application of the repayment of such costs and the matter was referred to the Labour Court by the employee’s union, IMPACT under the legislation referred to above.

Under those Acts, the Labour Court has jurisdiction to investigate and to make binding determinations on disputes referred to it where a number of key pre-conditions are met, primarily:

• a trade dispute exists
• it is not the practice of the employer to engage in collective bargaining (in the Ryanair case, a crucial question was whether the existing information and consultation processes already in place in Ryanair amounted to “collective bargaining”), and
• internal dispute resolution mechanisms have failed to resolve the dispute.

These provisions provide a system whereby the Labour Court could, in certain circumstances, where an employer did not recognise a trade union for collective bargaining purposes, issue a binding ruling on a trade dispute. That determination could then be enforced in the Circuit Court if not complied with by the employer.

The issue of whether the pre-conditions set out above had been satisfied was considered by the Labour Court in the Ryanair case. While the Labour Court found that the Industrial Relations Acts did not require Ryanair to negotiate with trade unions and could not be used to enforce trade union recognition against an employer, it nonetheless determined that it had jurisdiction to investigate a trade dispute. It interpreted the definition of “trade dispute” and the reference to a “difference” as permitting the Labour Court to investigate a difference between the pilots and Ryanair concerning the terms of their employment as amounting to a trade dispute for the purposes of the Act.

Ryanair had argued that it has always had a policy of not negotiating with trade unions, outlining instead that it prefers to deal directly with its employees and that it operates employee representative committees where such matters were resolved and that in effect there was no trade dispute between the parties.

The evidence before the Labour Court was that in common with many employers Ryanair had established consultative bodies known as Employee Representative Committees (ERC). It also held “Town Hall” meetings, which were the methods by which new policies and procedures were introduced. Ryanair argued before the Labour Court that the existence of these consultative bodies and processes amounted in effect to collective bargaining such that the Labour Court had no right to adjudicate on the dispute. It also argued that no bona fide trade dispute existed between the parties and it submitted that this was part of a strategy on the part of the union to compel trade union recognition.

The Labour Court determined that these processes did not amount to collective bargaining. It analysed the communications issued by the company to the employees and it was considered that if it was the practice of the employer to engage in collective bargaining there would have been some central negotiation on issues such as agreement establishing the employee representative committee (ERC), pension benefits and training arrangements. The Labour Court found that while Ryanair communicated with employees, it was not its practice to engage in collective bargaining negotiations. Further, the factual background was that the pilots had withdrawn from the ERC process and as such there was not at the time of the referral an ERC in place for the pilots.

Ryanair successfully appealed to the Supreme Court. As part of their judgment, the Supreme Court held that the Labour Court, in determining whether there was a trade dispute, should have investigated whether there was internal machinery for resolving the perceived problem and whether that machinery had been exhausted.

The Supreme Court held that the unilateral withdrawal from machinery put in place by the employer would not of itself entitle the employees to assert that there was no collective bargaining process in being. The Supreme Court disagreed with the Labour Court’s approach to whether or not machinery existed for collective bargaining negotiations. The Supreme Court stated:

"if there is a machinery in Ryanair whereby the pilots may have their own independent representatives who sit around the table with representatives of Ryanair with a view to reaching agreement, if possible, that would seem to be collective bargaining”

The Supreme Court found that the Labour Court’s approach in determining whether the existing machinery in Ryanair amounted to collective bargaining was fundamentally unfair.

Evidence was given at the hearing by officers of Ryanair to the effect that the ERC mechanism amounted to collective bargaining. The Supreme Court held that if that factual situation was going to be disputed that should have been done by “sworn or at the very least unsworn oral evidence before the Labour Court from pilots working in the company”. The Supreme Court held that the Labour Court’s reliance only on written submissions was unfair.

Conclusion

Employers should ensure their Grievance and Disciplinary Policies and Procedures are in compliance with the Code of Practice in terms of the types of representation employees are entitled to have during internal disciplinary hearings. Generally speaking, once they are in compliance with the Code of Practice, employers can rely on their policies and procedures and are not required to accede to requests for alternative types of representation. However, as outlined, legal representation may be an entitlement but only in exceptional circumstances.

Please do not hesitate to contact our RDJ LLP Employment Team for further advice and guidance in this area.