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Ask Buachaill Your Own Question
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10497
Experience:  Barrister 17 years experience
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Hi, my son was recently fired from his employment for giving

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Hi, my son was recently fired from his employment for giving a customer some extra toppings on an ice cream they had already purchased from another employee free of charge. He was talking to the customer whom he knew, the customer asked him for more toppings as she said the person who sold her the ice cream did not put enough toppings on the first time. Without thinking my son reached over the counter and added some extra toppings to the ice cream. For some other reason a manager was reviewing some CCTV footage when he came across the incident involving my son, the manager instigated a disciplinary investigation which resulted in my son being fired for theft which is considered as gross misconduct punishment by instant dismissal. He has appealed the decision which is due on June 3rd. I would appreciate some advice on how to approach the appeal, I believe that the punishment is unfair, unreasonable and disproportionate. They have accused my Son of theft tarnished his reputation and hindered his future employment chances. I also would like to question the use of the CCTV footage and how it was obtained.

1. This is extremely harsh behaviour on the part of the employer, as effectively, there was no theft here, only a satisfied customer! Your son should certainly appeal the decision and take it to the Employment Appeals Tribunal if he is not successful on an internal appeal as this is unfair dismissal. You are correct in stating that it is unfair unreasonable & disproportionate. Different considerations will apply depending on whether it is an internal appeal or an EAT Hearing. If it is an internal appeal, I would advise you son to be represented by a solicitor or a union rep, as being found to have engaged in theft is a serious allegation. It is important that a legal response is made to the allegations at the earliest possible time and to make clear that a legal action will ensure if this dismissal is followed. If it is a hearing before the EAT, then you son should certainly have a lawyer to represent him, as the employer is likely to have an experienced lawyer to represent him. Here damages can be awarded for unfair dismissal but as cross-examination is allowed it is imperative that your son has someone who can cross examine the employer and show up his unpleasant motives. Additionally, under the Criminal Justice Act it is necessary that evidence be given of the proper operation of the CCTV cameras and that they were in working order on the day the relevant tape was filmed. It this evidence is not properly collected, then it can be excluded. Here some help from a lawyer may be invaluable.
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Customer: replied 4 years ago.
Thanks for your reply. The appeal is an internal one with the general manager, the company are stating that my son can only be accompanied by a union rep or a work colleague. There is no union in the company so a union rep is not an option, most of the employees are students working part time and who will not want to go up against the management. My son has emailed the manager stating that he would like me to represent him but he is quoting the "code of practice" and will not allow it. I'm still planning on attending though. One other issue is that the manager hearing the appeal is the manager who reviewed the CCTV footage and instigated the disciplinary investigation although another manager carried out the investigation and termination but it is my feeling that the general manager was directing the proceedings. If this is the case the GM should not be conducting the appeal as he cannot be classed as an independent assessor, is this correct and can we object to him hearing the appeal. At the appeal what argument should we put up. Thanks.
Customer: replied 4 years ago.
Relist: Other.
I need an answer as soon as possible
2. There is a latin maxim which applies in all disciplinary proceedings which is "nemo judex in causa sua" (No man shall be judge in his own cause). Accordingly where this manager who reviewed the CCTV footage and initiated the disciplinary proceedings then cannot turn around and be judge on the appeal or any part of the disciplinary proceeding. This violates fundamental procedural fairness. Accordingly, your son or whoever appears on his behalf at the disciplinary proceeding should make this point clearly and object to this man sitting in judgment on him after he has initiated the disciplinary proceeding in the first place, as he is obviously biased and has an interest in the outcome.
3. There is additionally a right to be represented by a lawyer at any investigatory or disciplinary proceedings which has an adverse effect on a person's rights or livelihood. This means that the company cannot restrict the person to represent your son to a work colleague or to a non-existent union rep. Accordingly, I would advise you son to get a solicitor to represent him and to get the solicitor to write in advance and object to the manner in which the proceedings are being dealt with.
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