Natural/Constitutional Justice and the Work Place

Samuel T. Cogley

I half (mis)read somewhere that there was a recent(ish) decision meaning that work place disciplinaries no longer needed to take account of Natural/Constitutional justice. Is this the case, or is it perhaps on the case where there is no threat of dismissal? If so how do they get around a Constitutional right in that context?

I never did employment law but I always thought that there was an obligation for employers to allow cross examination of witnesses/accusers and were under strict decision making restrictions in relation to decisions being made in a fair and just manner.

Any thoughts/pointers welcome.

GM228

Samuel T. Cogley wrote: »

I half (mis)read somewhere that there was a recent(ish) decision meaning that work place disciplinaries no longer needed to take account of Natural/Constitutional justice. Is this the case, or is it perhaps on the case where there is no threat of dismissal? If so how do they get around a Constitutional right in that context?

I never did employment law but I always thought that there was an obligation for employers to allow cross examination of witnesses/accusers and were under strict decision making restrictions in relation to decisions being made in a fair and just manner.

Any thoughts/pointers welcome.

The minimum an employee is entitled to under the heading of Natural/Constitutional Justice and fair procedure is to be informed of a charge against them and to be given an opportunity to answer it and to make submissions. Principles such as nemo judex in sua cause and audi alteram partem rarely apply in relation to employment.

With regards cross-examination and any other natural rights and fair procedures, these are determined by an employees T&Cs and the agreed disciplinary procedures, if the disciplinary procedures deny a right to cross-examine then that is enough to deny the right, as held by the Supreme Court in 1998 - I'll dig out the relevant case law for you if you wish when I get the chance.

Samuel T. Cogley

You've done enough there GM228 I'll go some googling around it Thanks a million for the steer!

GM228

The most recent case I’m aware of to raise the issue is O’Leary vs An Post [2016] IEHC 237:-

(i) failure to permit cross-examination
47. The first such claim is that, at the disciplinary hearing, the plaintiff was wrongly deprived of the opportunity to cross-examine each of the two customers who had made a statement when interviewed in the course of the defendant’s investigation.

48. The most obvious difficulty that confronts the plaintiff in advancing that argument is the fact, not in dispute, that he did not seek to invoke any such entitlement either before or during that hearing. Accordingly, when the plaintiff avers “I was not ever, either myself or through my [union representative], afforded the opportunity to cross-examine and/or confront either [of the two customers concerned]”, his complaint is not that he sought, and was refused, such an opportunity, whether in advance of, or during, that hearing. Rather, it is that the defendant did not of its own volition tender those persons as witnesses during the hearing for the purpose of cross-examination.

49. Had the plaintiff sought to assert such a right to cross-examine at the disciplinary hearing, no doubt he would have been at once reminded of the terms of paragraph 8.2 of the defendant’s agreed Disciplinary Procedure whereby it is acknowledged that the defendant is not obliged to afford an employee the right of cross-examination of any person who has given a statement which is relied upon in initiating or continuing disciplinary proceedings.

50. The same paragraph of that agreed Disciplinary Procedure goes on to stipulate that, in instances where dismissal is being considered, the employee affected may raise questions which he would wish to have put to the person concerned and the defendant will put those questions to that person, within reason, as part of any process of further enquiry following the employee’s initial response to the notice of disciplinary proceedings. Again, it appears to be common case that the defendant did not seek to raise any such question or questions.

51. In the particular circumstances just described, the plaintiff has failed to satisfy me that he has established a strong or clear case that he was wrongly deprived of his right to cross-examine the relevant witnesses at the disciplinary hearing, in breach of his contractual entitlement to natural and constitutional justice and fair procedures.

52. In view of the finding I have just made, it is unnecessary and, therefore, inappropriate to address in any detail the question of whether fair procedures require that the applicant be afforded an opportunity to cross-examine the relevant witnesses in this case. As Laffoy J. pointed out in Shortt v. Royal Liver Assurance Ltd [2008] IEHC 332, the authorities make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on that person’s terms of employment and the particular circumstances surrounding the disciplinary process concerned (per Barrington J. in Mooney v. An Post [1998] 4 I.R. 288 at p. 298). The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result (per Hamilton C.J. in Gallagher v. The Revenue Commissioners (No. 2) [1995] 1 I.R. 55, at p. 76).

53. Any decision maker required to consider whether an entitlement to cross-examine witnesses arises on appeal as an aspect of the plaintiff’s entitlement to natural justice, given the nature of the plaintiff’s employment and the circumstances of the misconduct alleged, will inevitably wish to consider the close parallels between the present case and that which came before the Supreme Court in Mooney. There, the plaintiff was a postman in a position of trust; here he is a post office clerk in the same position. There the defendant had received complaints which caused it to have misgivings about the integrity of the postal service; here the same defendant has been presented with the results of an internal review that have caused it to have misgivings about the integrity of the state benefit payment system.

54. It might therefore be said of the defendant in this case, just as Barrington J. said of the same defendant in Mooney, that it was entitled to expect a candid response from the employee concerned when it put its misgivings to him. It might be said of the plaintiff in this case, as it was of the plaintiff in Mooney, that it was not sufficient for him in response simply to deny responsibility and profess to have no memory of any of the relevant incidents. Equally, it might be said, as it was in Mooney, that it is not sufficient in the context of an employment disciplinary process to metaphorically fold one’s arms and say: “I’m not guilty; you prove it”, while seeking to introduce the procedures of a criminal trial into an essentially civil proceeding.

55. It might also be said of the defendant, as it was of the same defendant in Mooney, that it was not in a position to set up an independent tribunal with a power to subpoena witnesses, even had it wished to do so, while at the same time it could not reasonably ignore the several suspected irregularities that had come to its attention as a result of an internal review, whether the customers concerned wished to become involved as witnesses in any internal disciplinary inquiry or not. Finally, therefore, it might be said of the plaintiff in this case, as was said of the plaintiff in Mooney, that the defendant was entitled to receive a proper explanation of the relevant events and did not receive one. It will be remembered that on the particular facts presented in Mooney the Supreme Court came to the conclusion that the appellant in that case was not entitled to cross-examine witnesses as part of the disciplinary process against him.

56. To the preceding observations I would add two more, specific to the circumstances of the present case. The first is this. Ordinary human experience confirms that the vast majority of us are naturally attentive in respect of whatever entitlement we may have to any income or benefit. The wrongful diversion of any such benefit is only likely to remain undetected – and, therefore, to succeed - where its rightful recipient is inattentive or confused, whether because of intellectual disability or the impairment of memory. It follows that victims in such circumstances are likely to be selected on the basis of a perceived inattention or confusion rendering them unlikely to complain, since that is what makes them vulnerable to the wrongful diversion of their lawful entitlements in the first place. For that reason, it is difficult to understand the suggestion, repeatedly advanced on the plaintiff’s behalf both during the conduct of the disciplinary process and the conduct of the present application, that the commencement of the disciplinary process on the defendant’s own initiative, rather than in response to the receipt by it of a specific customer complaint, in some way undermines the integrity or validity of that process.

57. The second observation that I would make is related to the first. While I do not purport to adjudicate on the matter, in so far as the plaintiff wishes to make the case that each of the two customers concerned is simply mistaken in asserting that she never signed two receipts - and, hence, never engaged in two separate transactions - in any one day, it is by no means clear to me that it is necessary to cross-examine each of those customers in order to make that case. If the reliability of the statements made by the two customers so far interviewed in the course of the investigation is being called into question, then, rather than insisting upon a right to cross-examine those persons as the plaintiff’s ‘accusers’ using the borrowed vernacular and paraphernalia of a criminal trial, should it not be possible as an acceptable alternative to seek to have similar interviews conducted with some or all of the fifteen or so other customers involved in the Department of Social Protection transactions executed by the plaintiff that have been identified as similarly irregular?

58. Before leaving this issue, it is appropriate to note that, in the affidavit that he swore to ground the present application, the plaintiff avers that he has indeed interviewed two of those other customers and has obtained (and, now, exhibited) a statement from each to the effect that he or she did sign each of the two receipts evidencing, in the case of each, two separate state benefit transactions a very short time apart. The plaintiff avers that he furnished each of those two witness statements to his union representative prior to the disciplinary hearing but acknowledges that they were not brought to the attention of the defendant in the course of that hearing.

59. For the sake of completeness, it is also appropriate to note that the customer who was interviewed by, and provided a witness statement to, the defendant on the 19th November 2013, died of lung cancer on the 15th January 2014.

60. For the reasons I have already set out above, it seems to me that both of these matters can be appropriately addressed in the context of the plaintiff’s appeal against dismissal. As Keane J. pointed out in his decision in the High Court in Mooney v. An Post [1994] ELR 103, citing Kiely v. Minister for Social Welfare [1977] I.R. 267, the person conducting the oral hearing will be obliged to adopt an even-handed approach in the reception of secondary evidence.

From the Mooney case:-

The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case.

Indeed two of the best known precepts of natural and constitutional justice may not be applicable at all in certain circumstances. As the trial judge has pointed out the principle of nemo judex in sua cause seldom applies in relation to a contract of employment where the employer judges the issue and is an interested party. Likewise it is difficult to apply, to a contract of employment, the principle of audi alteram partem which implies the existence of an independent judge who listens first to one side then the other.

If the contract or the statute governing a person’s employment contains a procedure whereby the employment may be terminated, it usually will be sufficient for the employer to show that he has complied with this procedure. If the contract or the statute contains a provision whereby an employee is entitled to a hearing before an independent board or arbitrator before he can be dismissed then clearly that independent board or arbitrator must conduct the relevant proceedings with due respect to the principles of natural and constitutional justice. If however the contract (or the statute) provides that the employee may be dismissed for misconduct without specifying any procedure to be followed, the position may be more difficult.

Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.

the great communicator

GM228 wrote: »

The most recent case I’m aware of to raise the issue is O’Leary vs An Post [2016] IEHC 237:-




From the Mooney case:-

Lovely extra case for the FE1 on Friday thanks!