Employee Awarded 6 Months Salary due to Flawed Dignity at Work Investigation

by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher.

In a recent unfair dismissal case (ADJ-00032713), an employer (“Respondent“) was ordered to pay over €28,000 to a former employee as the WRC found that it dismissed the complainant employee on foot of a flawed dignity at work investigation process.

Background
Three females employed by a contract cleaning firm at the Respondent’s facility lodged a complaint against the complainant employee. While not employees of the Respondent, an employer is still obliged to consider and, if necessary, investigate complaints from non-employees such as these. On foot of these complaints, the Respondent initiated a dignity at work investigation. The Complainant was placed on paid suspension during this investigation process. Ultimately, the Complainant was dismissed for gross misconduct on foot of these allegations.

Breach of fair procedures?
At the WRC hearing, the Complainant’s representative submitted that there were “numerous and most serious procedural flaws” in the Respondent’s process. For example, it was claimed that there was an acceptance of written complaints at face value, allowing one accuser to sit in on investigation meetings of other accusers, a failure to properly interview the Complainant and a failure to allow the Complainant to cross examine his accusers.

Another issue raised by the Complainant’s representative was that the same Respondent manager acted as the investigator and subsequently took the decision to dismiss the employee.

The Complainant’s representative also submitted that the penalty of summary dismissal was completely disproportionate for a worker of 20 years’ unblemished service.

The Respondent contested these allegations, submitting that “at all stages the process was thoroughly professional and fair”.

Outcome
The WRC Adjudicator found that the evidence pointed “to a number of serious shortfalls in the application of natural justice.” He noted that the Complainant was never formally interviewed by the investigator and neither he nor his union representative were ever given an opportunity to cross examine the accusers.

The Adjudicator referred to another “major issue” which related to the fact that the entire investigation and dismissal process was carried out under the Dignity at Work Policy. The Adjudicator noted that this policy did not have a dismissal option but referred to matters being progressed, if appropriate, to a separate Disciplinary Policy and that this was not done in this case.

In conclusion, the Adjudicator determined that there were “too many shortfalls in natural justice and procedural irregularities” for the Respondent’s defence to be sustained and the claim of unfair dismissal succeeded.

General Commentary
This WRC case acts as a general reminder to employers that, at times, an investigation process – no matter how time-consuming, may still fall short of the high standards of fair procedures that are expected from an employer.

In this regard, it should be generally noted by employers that there are codes of practice which may be relevant – such as the Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work and the more recent Code of Practice on Sexual Harassment and Harassment at Work. These may, as applicable, act as a useful guide to employers carrying out investigations.

Cross-examination
An interesting element in this case were the various references to the fact that the Complainant/his representative were not provided with the right to cross-examine the accusers who had raised the complaint against the employee. The Complainant’s representative had indicated that this should have occurred due to the “numerous inconsistencies in the witness statements” which cross-examination could have probed.

Cross-examination of witnesses or complainants at internal procedures is certainly not automatic or even common. Nevertheless, every situation must be determined by its own circumstances and it seems that the Adjudicator here was influenced by the fact that it did not occur.

About the author
Barry Walsh is Partner and Head of the Employment Team at Fieldfisher. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.