by Greta Siskauskaite, Solicitor, Employment law at Fieldfisher LLP (Ireland)
The Workplace Relations Commission (WRC) has ruled that a van driver (the complainant), was unfairly dismissed by an engineering company (the respondent) due to procedural flaws in a disciplinary process, including around the question of cross examination of a key witness.
The background was that issues arose regarding suspected falsification of timesheets by the complainant. A third party was engaged by the respondent employer to investigate.
Over a protracted period, the complainant refused to engage with the investigation process – as the WRC put it, he “did not engage with the investigation process on any level whatsoever“. Ultimately, the factual investigation was concluded in his absence.
A separate disciplinary process was then commenced which relied on the investigation findings and ultimately led to his dismissal.
Although the complainant’s avoidance of the investigation process was “difficult to understand”, the WRC found that he was denied a fair opportunity to challenge key evidence during the disciplinary hearing – specifically, photographic material relating to the allegations. It held that the party who took the photographs and compiled the report should have been required to attend the disciplinary hearing
The failure to allow cross-examination of this key witness was deemed a “fundamental weakness” and the WRC Adjudicator said that “the Respondent should have agreed to the request that the third party who took the photographs and compiled the report should have been required to attend the disciplinary hearing”.
The complainant was awarded €3,584 for unfair dismissal (reflecting the fact that the Complainant contributed substantially to his own dismissal) and €7,168 under the Minimum Notice & Terms of Employment Act.
See decision here – Workplacerelations
This case highlights the importance of fair procedures. While cross-examination of witnesses or accusers is not a standard part of disciplinary process, it does sometimes arise for consideration. Employers should carefully consider an accused employee’s request to conduct such cross examination on a case-by-case basis.
About the author
Greta Siskauskaite specialises in the area of employment law and advises on both contentious and non-contentious employment matters at Fieldfisher LLP (Ireland).
Greta provides both commercial and best practice advice to employers and employees on all matters relating to employment law. This includes bringing/defending claims to the Workplace Relations Commission/Labour Court, advice on contracts and employee handbooks, internal company procedures, discrimination, redundancy and TUPE.
Greta’s experience includes assisting both private and public sector clients.
Greta regularly attends Employment Law Seminars to ensure that she remains up to date on relevant legislative developments.
Greta hold’s a Bachelor of Business and Law Degree from NUIM and a Diploma in Employment Law from the Law Society of Ireland.
