ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022037
Parties:
| Complainant | Respondent |
Parties | Roger Martin | Coca Cola Hbc Ireland Ltd |
Representatives | David Scott, Scott Solicitors | Jan Hayden Ibec |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00028895-001 | 06/06/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00031468-001 | 09/10/2019 |
Date of Adjudication Hearing: 15/04/2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the Complaint to me by the Director General, I inquired into the Complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the Complaint.
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties confirmed that they understood this and were agreeable that the hearing would proceed on that basis.
It was also explained to the parties that where there is a serious conflict of evidence in the complaint before an Adjudication Officer that will require an adjournment of the hearing to await the amendment to the Workplace Relations Act, 2015 to grant Adjudication Officers the power to administer the oath and to provide a punishment for the giving of false evidence. Both parties confirmed their understanding of this point.
It was confirmed and agreed at the hearing that there are several duplicate complaints in relation to this matter: ADJ-00021994 is a duplicate of ADJ-00022037 and CA-00031469-001 is a duplicate of CA-00028895-001. For the avoidance of doubt the relevant reference numbers for this complaint are ADJ-00022037 and Complaint Reference Number is: CA-00028895.
Background:
The complainant commenced employment with the respondent in February 2005 and was later promoted to the role of Business Developer. The respondent became aware of some incidents in relation to the complainant in August 2018. These incidents involved submitting false and inaccurate information in relation to the scanning process for a cooler which no longer existed. Following an investigation and disciplinary process the complainant was dismissed for gross misconduct on 14/12/2018. His subsequent appeal was not upheld. The complainant was paid €2,220 per month. He submitted his complaint to the WRC on 06/06/2019 and is seeking reinstatement. |
Summary of Complainant’s Case:
The complainant commenced employment with the respondent on 01/02/2005. After about eighteen months he was promoted to the position of Business Developer. He had an unblemished record during his fourteen years with the respondent. The background to this matter is that the complainant had a number of additional premises added to his rota in February 2018. These premises were previously the responsibility of “Employee 1”. As part of his role, he was required to attend the various premises on his route and scan the barcodes on the cooler machines. Once this was done the account for that premises would open on the complainant’s iPad and this allowed him to enter stock details and order any additional stock. On some occasions it might not be possible to physically enter a premise in circumstances where it was closed or only opened outside core business hours. On those occasions the complainant would scan a photograph of the barcode so that the location of the cooler could be confirmed. The complainant’s immediate superior “Employee 2” reported to the respondent company as the complainant scanned a photograph of a cooler machine in Location A. This cooler was the responsibility of “Employee 1”, and it was he who provided the complainant with the photograph of the bar code for the cooler machine in Location A. The complainant was unable to access this premises as it did not open until 9.00pm. Arising from this report by “Employee 2” a disciplinary process was conducted and ultimately, he was dismissed for gross misconduct. It was submitted on behalf of the respondent that he was unfairly dismissed for three reasons: (1) The behaviour which was alleged as being gross misconduct was a long-standing common practice and was engaged in with the knowledge and previous consent of the complainant’s immediate supervisor. The practice of scanning barcodes was commonplace, widespread and accepted amongst all the Business Developers employed by the respondent in the western region. This was done “with the full knowledge and consent of the Business Developers’ immediate superiors” including “Employee 2”. The complainant submitted a number of e-mails which contain barcode photographs. It is the complainant’s view that the reason these were circulated was so that they would be available to all other Business Developers for scanning. It was submitted by the complainant that e mail correspondence between him and his manager, “Employee 2”, from dates in May 2016 and May 2018 clearly show that this practice was known by “Employee 2”. If it was not an acceptable practice it would “be unconscionable” for the Complainant to write to “Employee 2” confirming the scanning of a cooler if he had “knowledge that engaging in the scanning of such a photograph was tantamount to misconduct of any nature.” At the appeal hearing on 22/01/2019 the complainant submitted these emails and accompanying photographs as evidence that the scanning practice for which he was dismissed was common practice. His appeal was adjourned to allow the respondent to investigate the matter submitted at the appeal hearing. The complainant was advised in June 2019 that his dismissal was confirmed. (2) The complainant was not afforded fair procedures in the disciplinary process. The complainant was implicated by the statement provided by “Employee 2”. Because of these allegations the complainant was dismissed. At no stage was the complainant given an opportunity to hear “Employee 2”’s evidence and he was not given an opportunity to cross examine “Employee 2”. It was submitted by the complainant’s representative that the requirement for fair procedures and the right to cross examine and hear direct evidence were clearly set out in Gallagher v. Revenue Commissioners [1995] ELR 108. Given the serious consequences for the complainant the respondent was obliged to act judicially and adopt procedures which were fair and reasonable. The complainant was not given an opportunity to hear directly what “Employee 2”’s allegations were, and he was not given any right to cross examine. It follows then that the procedures adopted by the respondent were fundamentally flawed and unfair to the complainant and he did not have the opportunity to properly defend himself. It was also submitted on behalf of the complainant that once he notified the respondent that “Employee 2” was aware and complicit with the practice of scanning photographs the unfairness towards him was exacerbated. Some examples include the respondent’s contention that he refused to attend an investigatory meeting on 18 June 2019 whereas the complainant confirmed that he would cooperate in any investigation pertaining to his own disciplinary proceedings. This meeting was arranged for a Dublin venue at a time when the respondent was aware that the complainant was recuperating from major surgery and did not have the means to travel due to his dismissal. The letter from the respondent confirming the dismissal was received by e mail on 19 June 2019 but the attached letter was simply dated “June 2019”. It was submitted on behalf of the respondent “that his fate was determined in advance of the said investigatory meeting of 18th June.” (3) The sanction of dismissal imposed was entirely disproportionate. The complainant worked diligently in his position for a period of fourteen years and had an unblemished record apart from a minor issue in relation to attendance some ten years earlier. The complainant did not engage in the conduct for any personal gain, and he engaged in the disciplinary process in an open and frank manner. The cooler at the centre of this matter was in the premises for several years before it became part of the complainant’s route in February 2018. “Employee 2” confirmed in the investigation process that this cooler had no net book value. During the disciplinary process the complainant’s good record was highlighted on a number of occasions but it did not feature as a mitigating factor in the reaching its determination. There was no documentary evidence that the respondent assessed a range of penalties prior to the imposition of the ultimate sanction of dismissal. On behalf of the complainant, it was submitted that if others were dismissed for the same reason then it clearly was common practice. It was also queried why the procedure had to be “reset” in 2017 if there was nothing wrong. The complainant’s line manager, “Employee 2”, was aware of the practice and yet he was the one who submitted the complaint. There was no mention of “Employee 2” in any documentation until the September meeting and at that stage the complainant should have been given the opportunity to cross examine “Employee 2”. The undated letter of June 2019 is significant, and it demonstrates that the sanction was determined in advance. There is a fundamental flaw in the appeal process in that it adjourned to allow further investigation but did not reconvene to hear the remainder of the complainants’ appeal. The complainant’s representative submits that the decision to dismiss was grossly disproportionate in the circumstances. Evidence of the Complainant: The complainant in evidence outlined his employment history and what his role involved. He was required to call to business in a defined area and complete orders and put-up displays. His route was changed in 2018 and the premises in location A which was the subject to this incident was added. In relation to the incident, he outlined that he returned from two weeks annual leave. His manager, “Employee 2” asked him about two coolers. He was asked specifically if he had seen the cooler and he replied that he did not, and the reason was that the premises did not open until 10.00pm. He confirmed that the previous employee who looked after the premises done the same as him, photograph the bar code. He confirmed that scanning was common practice and he got confirmation from “Employee 2” to get tags to scan. The complainant confirmed that he only done this when he could not get access to a premise. The complainant felt that was something wrong when he observed “Employee 2” following him in a town on his route. He got a call from “Employee 2” who asked about where he got the scan for the cooler in a particular premise. He confirmed to “Employee 2” that he used a photograph and “Employee 2” advised him that he would have to report this. Following this he was invited to a meeting. He was only permitted to use the in-house trade union representative who he met 10 minutes before the meeting. He was advised by his trade union representative that if he admitted to what had happened, he would get a slap on the wrist. The complainant confirmed that “Employee 2” was a work colleague and his line manager. He did not ask to cross examine “Employee 2” as he trusted the advice, he got from his trade union. He confirmed that he only realised the severity of the matter when he was dismissed in December 2018. The complainant outlined the effects this decision had on him. In relation to the appeal process he outlined that his approach changed then as he realised that he was now fighting for his job and that was why he provided evidence of the widespread practice and also evidence that he received permission from “Employee 2” to order tags. It was his understanding that the meeting was adjourned to allow time for the respondent to study it. In relation to the meeting on 18th June 2019 the complainant confirmed that he was asked to attend an investigation meeting in Dublin, and he replied that he was happy to attend any investigation meeting in relation to this own dismissal. He confirmed that the next correspondence he had from the respondent was a e mail on 19th June 2019 containing a letter confirming his dismissal. Under cross examination the complainant confirmed that he repeatedly said that what he had done was wrong. He also confirmed that at the disciplinary hearing he was then represented by a senior trade union official. He did receive copies of all meeting notes. He did not ask to cross examine “Employee 2” as he trusted his trade union official in the matter. The complainant confirmed his understanding that the appeal was adjourned and never resumed.
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Summary of Respondent’s Case:
The complainant was employed by the respondent from 1/02/2005 until 14/12/2018. He was dismissed from his employment for gross misconduct following a thorough process, undertaken by the respondent to ensure maximum fairness and transparency and conduct in accordance with fair procedures and natural justice. The background to the matter is that the respondent became aware in August 2018 of incidents with the complainant with regards to submitting false information and inaccurate numbers in the company’s reports and the canning of a cooler which no longer existed in the customer outlet. An investigation process was established, and the complainant attended an investigation meeting on 17/09/2018 accompanied by his trade union representative. The complainant was provided with copies of all relevant documentation. At this meeting the complainant admitted that he last saw the cooler in location A about one year and a half ago and that on each occasion he scanned a photograph of the bar code. He also admitted that he submitted false numbers and information which would affect company targets. The investigation team also met with “Employee 2” and a further meeting took place with the complainant on 08/10/2018. At this meeting the complainant confirmed that he was never physically present in the outlet at location A on the four occasions he scanned the tag. The complainant also confirmed that he filed reports containing falsified information and he was aware that this was wrong. Arising from this a disciplinary process was established and the initial hearing was postponed as the complainant was ill. A disciplinary hearing took place on 04/12/2018. The complainant was on notice that the allegations “have the potential to be deemed gross misconduct and breach of the Code of Business Conduct. The complainant was represented by his trade union official. The complainant confirmed that the matter was serious and that he was fully trained the in procedures. The complainant was advised of the outcome of the disciplinary hearing on 14/12/2018 and he was advised that the disciplinary officer considered the complainant’s regrets but was unable to find any mitigating circumstances. The complainant was advised of his right to appeal. The appeal hearing took place on 22/01/2019. The appeal hearing was adjourned to facilitate a further investigation of a number of witnesses named by the complainant. The respondent tried to organise a further meeting with the complainant in relation to this matter, but the complainant declined to attend any further investigations. The complainant was informed that the decision to dismiss him was upheld on 19/06/2019. It was submitted on behalf of the respondent that the Unfair Dismissals Acts, 1977, 4.1 S.6(4) states: (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following b. the conduct of the employee.” The respondent acted in accordance with Section (6)4 and terminated the complainant’s employment because of gross misconduct. The respondent submitted that that the case of Mullane v. Honeywell Aerospace Ireland Limited, UD 11/2008 is relevant. The Tribunal in this case sets out the requisite remit of the Tribunal and the burden which must be demonstrated by the respondent in this instant case: “The Tribunal is not required to determine whether the claimant did nor did not carry out he alleged act […]. The Tribunal’s function is to establish whether the respondent has proven that the dismissal was not unfair, having regard to the terms of the Unfair Dismissals Acts 1997 to 2011. For this to be established the Tribunal must be satisfied that the alleged act […] was fully and fairly investigated by the respondent, that the investigation and disciplinary process respects the rights of the claimant, that the conclusion of the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that the dismissal was a proportionate response within the band of sanctions which could be imposed by a reasonable employer.” The respondent submitted that the criteria outlined by the Tribunal were fully met: (a) Fair procedures: All matters were “fully and fairly investigated” and the complainant’s rights were upheld throughout the process. The rights outlined in SI146/2000 were upheld. The complainant was at all times fully aware of the allegations against him and that these were being considered under the respondent’s disciplinary procedure. The respondent ensured that the complainant was provided with an opportunity to respond fully to all allegations and to present his case and influence the decision. The complainant availed of his right to be represented at all stages. The complainant was “afforded a fair and impartial determination of the issues.” All relevant information and evidence were taken into consideration and the parties who were involved in the decision-making process were impartial and not previously involved. The complainant was also afforded a right to appeal.
(b) Conclusion based on the “balance of probabilities”: It was reasonable for the respondent to conclude that the complainant had carried out an act of gross misconduct. The complainant admitted he had done wrong and that a disciplinary sanction should be imposed on him.
(c) A “Proportionate response”: The dismissal was a “proportionate response within the band of sanctions which could be imposed by a reasonable employer.” The sanction was proportionate in light of the severity of the mater. Any reasonable employer could not be expected to continue to trust an employee who carried out acts like this and who, with over 14 years’ service was fully trained in the processes and procedures in place. The respondent has a duty to ensure that they employ trustworthy staff and who will follow procedures and not carry out acts of misconduct such as in this case. This incident has irrevocably broken down the relationship between the respondent and the complainant. Any lesser sanction would not be appropriate for an incident as severe as this.
The respondent’s disciplinary policy clearly states that “False declaration of any kind in connection with our employment with us” is regarded as gross misconduct. It was submitted on behalf of the respondent that the complainant’s actions did amount to gross misconduct, and they would not be in the position to trust the complainant to continue to work for them. The respondent contends that the complainant contributed wholly to this dismissal. It is the respondent’s position that the complainant is not entitled to any redress under the Unfair Dismissals Acts, 1977-2001. This is in line with the position frequently taken by the Employment Appeals Tribunal, including the case of Murray v. Meath County Council, UD 43/1978 where the Tribunal did not award any redress to the complainant in light of his inappropriate actions. The respondent disputes the contention that the act of taking photographs of a bar code was common practice. The e mails referred to be the complainant pre-date a new governance document which was issued in 2017 and which “reset” the procedure. The important aspect of these procedures is that a photograph is acceptable “so long as the asset itself is there.” The respondent also submits that there was no issue in relation to the cross examination of “Employee 2” as the actions report by “Employee 2” were admitted by the complainant at all stages throughout the process. What was being investigated then was not allegations but rather the actions admitted by the complainant. At no stage did the complainant or his trade union representatives ask to cross examine any witness. All notes of meetings and documents were given to the complainant and there were no issues raised. The respondent also disputed that there was no financial gain. The scanning process is linked to a target system which in turn links to a quarterly bonus process. In relation to the appeal process the complainant “opened up a broader issue” which had to be investigated. As a result of this other were also dismissed for gross misconduct but because it was alleged that the matter was common practice does not mean that its acceptable. The respondent submits that based on the evidence and submission that the dismissal of the complainant was not unfair. Summary of Witness Testimony Evidence of “Witness A”: “Witness A” is a Distribution Specialist with the respondent. He was the chairperson of the disciplinary hearing. He confirmed that he has undertaken 20-30 disciplinary hearings and that he is fully familiar with fair procedures and due process. He outlined that they met with the complainant and his trade union representative. He was provided with the notes of the investigation process. In cross examination “Witness A” was not aware of why “Employee 2”’s name was not mentioned until the meeting on 17/09/2018. He based his decision on the notes and letter from the investigation process and his meeting with the complainant. There were no mitigating circumstances, and he was clear that this conduct was clearly in breach of the company’s Code of Business Conduct. The decision to dismiss the complainant was his and his alone. Evidence of “Witness B”: “Witness B” is the National Field Sales Manager with the respondent. He was nominated as the appeals person appointed by the respondent to hear the appeal. He has been involved in 6 or 7 similar appeals in the past five years. The complainant attended the appeal hearing along with his trade union official. During the course of the hearing, he submitted new material which would require further investigation and he adjourned the hearing to allow this. He was not the person who investigated the matters raised. This was undertaken by the Group Audit function. At no stage during the hearing did the complainant or his representative raise any question or issue in relation to the cross examination of any other witness. Under cross examination “Witness B” confirmed that the complainant made the case that the scanning from a photograph was common practice and he did not know why he was singled out. “Witness B” confirmed that the adjourned the appeal process to allow the investigation into the matter submitted by the complainant to be investigated. When he was informed that that process had concluded he then proceeded to make a determination in relation to the appeal. He was confident that he had enough evidence to do so. The date missing from the letter on 19th June was simply a mistake.
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Findings and Conclusions:
The fact of dismissal is not in dispute. The dates of the employment are also not in dispute. Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows: 4) Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. Section 6(6) of the Act states as follows: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal. The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair. The combined effect of the above sections of the Act requires me to consider whether or not the respondent’s decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances. It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish either the guilt or innocence of the employee. The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done. This is the standard by which the respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process. In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances. In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows: “In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.” In the within case there are clearly issues which the respondent was required to address. It is clear from the submissions and evidence adduced that the practice of scanning a photograph was tolerated for some time. The complainant provided evidence of 120 images of barcodes which were available to the respondent’s Business Developers. There was also evidence of e mail exchanges which indicated that some machines were not scanned. The previous Business Developer on the complainant’s route and the complainant’s line manager, “Employee 2”. There is also e-mail evidence of a request from another employee requesting a copy of a tag. It is clear that the process around scanning was problematic. This was “reset” in 2017 and the circumstances which led to this were not clear. What is clear is that the process was tolerated and in certain circumstances approved. For example, when access to a premise could not be obtained it was deemed acceptable “so long as the asset still there.” This is contradictory in that if the premises were closed it is not clear how a Business Developer could ascertain its presence. The issue of fair procedures requires examination. It is clear that the investigation process was conducted by persons with the relevant expertise. What is not clear is who was responsible for instituting the investigation and what were the terms of reference. From the evidence adduced it would appear that the investigation was precluded from any consideration of whether the practice constituted a systemic failure. The investigation process did not produce a report of its findings. There was evidence that a final note was produced in addition to the notes of the various meetings. There was a considerable weight given by the complainant to the fact that he was not facilitated with cross examination. A right to fair procedures and natural justice in implied into contracts of employment. These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment. The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process. It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made. While this right may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters. Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer. In Borges v. The Fitness to Practice Committee [2004]1 IR 103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures. In that case, Keane CJ stated: “It is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.” It follows then that in addition to the right to cross examine his or her accuser there is a further entitlement to be told of this right. If an employee fails to ask for cross examination, they cannot be faulted for failing to ask. In the recent Supreme Court case, Zalewski v. Adjudication Officer and WRC[2021] IESC 24 the Court was critical of the fact that there was not express provision for cross examination in the Workplace Relations Act, 2015 although it occurred in practice. It held that this was a fundamental aspect of constitutional fair procedures. The Court emphasised the benefits of cross-examination as a core part of fair procedures: “As long ago as Re Haughey, these features of court proceedings, and in particular, the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination … was one of the rights without which no party ‘could hope to make any adequate defence of his good name.’” As outlined above it is also the function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done. In this case the “Witness A” was the chairperson of the disciplinary hearing. He confirmed in evidence that he has undertaken many disciplinary hearings and that he is fully familiar with fair procedures and due process. He based his decision on the notes and letter from the investigation process and the meeting with the complainant. There were no mitigating circumstances, and he was clear that this conduct was clearly in breach of the company’s Code of Business Conduct. The decision to dismiss the complainant was his and his alone. There was no evidence provided that would outline the range of options that were considered. “Witness A” told the hearing that there was only one option available to him under the respondent’s Code of Business Conduct. In deciding that there were no mitigating circumstances it seems to me that there was no weight given to the complainant’s previous record of just over 14 years which was consistently highlighted throughout the process. There was also no evidence of any consideration given to his cooperation with the entire process. There were a range of options outlined in the respondent’s disciplinary policy which, at a minimum, deserved some deliberation. Arising from the foregoing it follows that the respondent has not dislodged the presumption that the dismissal was unfair arising from the disproportionate sanction of dismissal. The importance of fair procedures in cases involving dismissal on grounds of misconduct has long been set out in case law. Cross examination is an entitlement for the complainant under the principles of natural justice. Overall, I find that there have been procedural flaws in the investigation process and disciplinary hearing which resulted in the dismissal of the complainant. I must also consider if any procedural flaws had “having regard to all the circumstances” had an impact on the overall outcome. In Shortt v Royal Liver Assurance Ltd [2008] IEHG 322, Laffoy J outlined that a central consideration to fair process is whether or any purported breach of natural justice was “likely to imperil a fair hearing or a fair result.” Having regard to the foregoing points and the totality of the evidence as presented, I find that no reasonable employer would have dismissed the complainant in the circumstances. In the light of same, I find that the dismissal of the complainant was unfair for the purposes of the Acts and the complainant’s claim is well founded. Regarding a remedy, objectively, this employment relationship was strained but not irretrievably broken. I do accept that a breach of trust has occurred in this case. The events were unfortunate, but I do not believe the complainant should have lost his job as a result. Due to the nature of the complainant’s role, it is possible that the bond of trust can be restored to the extent that a reasonable professional working relationship can be established. I do find that the complainant contributed to the situation he found himself in. I accept that he participated constructively in the investigation and disciplinary process and took the advice of his then representative. The respondent is directed to re-engage the complainant within six weeks of the date of this decision. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Having given careful consideration to all the submissions received and the evidence adduced in this case I find the complaint is well founded. The respondent is directed to re-engage the complainant within six weeks of the date of this decision. |
Dated: 20-05-21
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Unfair dismissal. Investigation process. Right to cross-examination. Disciplinary process. Re-engagement. |