Complainant

Respondent

Anonymised Parties

An Accounts Administrator

A Manufacturing Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00023205-001

14/11/2018

The Complainant was employed by the Respondent as an Accounts Administrator from 14 October, 2014 until 24 August, 2018 when she was dismissed from her employment. The Complainant claims that she was unfairly dismissed from her position and that the manner in which the dismissal was effected was totally lacking in procedural fairness and natural justice. The Respondent denies that the Complainant was unfairly dismissed from her employment and contends that she was dismissed as a result of serious misconduct following a thorough and fair disciplinary process.

The Respondent is a small employer working in the construction industry with six office-based employees and eighteen on site employees.

The Respondent submits that the Complainant was suspended on 19 April, 2018 to allow for an investigation into allegations of serious misconduct against her. She refused to participate in the investigation into the facts, despite being represented by her own solicitor at the time. The Complainant attended a disciplinary hearing on 20 August, 2018, was dismissed on 23 August, 2018 and then attended an appeal hearing on 23 October, 2018, accompanied by her solicitor on each occasion.

The Complainant was found guilty of:

a)       Disobeying a reasonable instruction given on 17 April, 2018 by Mr. A (Director) to report to him any contact with either of the then suspended employees (Mr. X – Managing Director and Mrs. X – Office Manager) and not to provide those two individuals with any information they requested, including by having telephone conversations with Mr. and Mrs. X and removing from the office three files all on 18 April, 2018.

b)      Facilitating the Respondent company to be charged by a motor repair company for works it carried out on a vehicle owned by a third party, believed to be Mrs. X and instructing the motor repair company to not record the vehicle registration number on their invoice to the Respondent.

The Respondent submits that Mr. and Mrs. X are former employees of the company and alleged by the Respondent to have defrauded the company of a very significant sum of money, which almost led to the closedown of the Irish business and is the subject of current High Court proceedings and has been reported to An Gárda Síochána. In light of such circumstances, any contact by an employee of the Respondent with Mr. an Mrs. X would be a very serious matter and employees were informed on 17 April, 2018 that any such contact was to be reported immediately.

The Complainant submitted her resignation to the Respondent on 17 April, 2018 as a protest at Mr. and Mrs. X being suspended from their employment as part of the Respondent’s investigation into the alleged fraud. The Respondent later allowed the Complainant to withdraw her resignation. The next day, 18 April, 2018, the Complainant carried out the acts of serious misconduct the subject of the allegation set out at point a) above i.e. she was in contact with Mrs. X, including removing property from the company office to be delivered to Mrs. X, and not reporting such contact to the Respondent.

The Respondent submitted that various other allegations were initially levelled against the Complainant, including that the petty cash box with €700 went missing on the day she was witnessed removing property from the company. However, these allegations were dropped after the Investigator found to direct evidence to confirm the allegations.

At all times during the disciplinary process, the Complainant was represented by her solicitor and accompanied by her solicitor to all disciplinary meetings. The Complainant refused to participate in the investigation and refused to speak at the disciplinary meetings, with only her solicitor speaking on her behalf at the disciplinary and appeal meetings. A detailed written submission from the Complainant was considered by the Respondent before taking the decision to dismiss the Complainant. The Complainant provided no plausible explanation to disprove the allegations set out above during the entirety of the disciplinary process.

Submissions

It is submitted that the Complainant was given the benefit of fair procedures. As pointed out by Barrington J. in the Supreme Court case in Mooney -v- An Post [1998] 4 IR 288, an employee is entitled to “…. Be informed of the charge against him and to be given an opportunity to answer it and make submissions …”. Barrington J later states in the Mooneycase that: “It is important to emphasise that the dismissal proceedings were not criminal proceedings and it was not sufficient for a person in the position of the plaintiff simply to fold his arms and say:- “I’m not guilty. You prove it.” To attempt to introduce the procedures of a criminal trial into an essentially civil proceeding serves only to create confusion”. It was submitted that unfortunately, that is exactly what the Complainant did throughout the disciplinary process. She denied the allegations but instead of explaining herself, she demanded that the Respondent simply prove its case and she sought to create confusion by alleging a lack of fairness in the procedure.

It was submitted that tellingly, the plaintiff in the Mooney case also sought to cross examine witnesses, but this case failed, and Barrington J. pointed out that the defendant, An Post, did not have the “power to subpoena witnesses even had it wished to do so”. Similarly, the Respondent did not have the power to subpoena the relevant person from the motor repair company even had it wished to do so.

As noted by Peart J. in Kelleher -v- An Post [2013] IEHC 238: “It is inevitable that often during internal or in-house investigation leading to a dismissal the decision-maker ad some or all of the investigators will have some form of contact, and that there may be communication of some kind about the issues involved ….” and that not to have otherwise …. “is to expect too much”.The Complainant’s submission that she was not given an impartial hearing based on the identity of the investigator and chair of the appeal is therefore misconceived.

In Irish Rail -v- McKelvey [2018] IECA 346, Mr. Justice Irvine, in the Court of Appeal held (rejecting the High Court Judgement in Lyons -v Longford Westmeath ETB) that for a dismissal disciplinary process to meet the requirements of fairness, natural and constitutional justice “it should not, save in exceptional circumstances, be necessary for the employee to be legally represented. Neither, in my view, should it be necessary that the procedure to be deployed should ape the type of hearings with which we are familiar in criminal or civil proceedings before the courts”.

The Respondent submits that the Complainant was given a fair hearing, she was at all times fully aware of the allegations against her, the evidence relied upon, and she was given the opportunity at all three stages (investigation, disciplinary meeting and appeal) to make submissions in her defence. Moreover, she was represented by her solicitor throughout the disciplinary process.

The Respondent submits that it must be emphasised that, despite the benefit of legal representation, the Complainant refused to participate with the fact-finding investigation. It is self-serving in such circumstances for the Complainant to then argue that the process was unfair. The documentary evidence presented to the Complainant by the Respondent and the Investigator clearly substantiates the allegations she was found guilty of and she did not engage on those facts.

The Complainant was employed by the Respondent for nearly four years when her employment was terminated unfairly and in complete disregard for fair procedures. The Complainant had her employment suspended on 19 April, 2018 and her employment was terminated on 24 August, 2018. Prior to April, 2018, the Complainant had an exemplary employment record with the Respondent and was never the subject of any disciplinary actions. The Complainant was appalled that on 17 April, 2018, without any warning, two of her colleagues (Mr. and Mrs. X) were suspended. The Complainant was very upset as a result of the suspension as the employees within the company got on very well as she was very worried about her position given the Manging Director (Mr. X) and the Office Manager (Mrs. X) were being suspended simultaneously.

The Complainant submits that she was unaware as to why her two fellow workers were being suspended and is of the understanding that neither now work for the Respondent. However, the Complainant is certain that she was targeted by the Respondent post her representations for fairness to be shown to her former colleagues when they were suspended.

The Complainant was introduced to Mr. A on 17 April, 2018 and was instructed that he was going to be managing the office in the absence of Mr. X to steer the company in the right directions while Mr. and Mrs. X were suspended. This was incorrect and misleading information as Mr. A was only identified as an Investigator after the Complainant had worked with him and only after she had supplied him with information. Mr. A lured the Complainant into a false sense of security in that she was advised that this man was to be her colleague. The Complainant was instructed to give Mr. A any and all information in relation to the running of the company which she did without any kind of representation or without being forewarned that Mr. A was an investigator, was investigating her, her actions and inactions (if any). It was submitted that this is a significant departure from fair procedures and that Mr. A was biased when he already had been involved in the collection of evidence prior to the Complainant having been notified that he was an Investigator.

On the 19 April, 2018, the Complainant was called to a creditors meeting to discuss what money was owed to the company. During this meeting she was asked for all her log-in details and passwords to all accounts. During the course of the meeting, Mr. B, Director, fired an envelope across the table at the Complainant, became very aggressive screaming foul language and became very intimidating and suspended her without any warning and without being advised to bring a representative. It was submitted that the manner in which the suspension was effected was a blatant disregard for fair procedures and natural justice and that the Complainant was ambushed into a meeting with an investigator without any notice.

The Complainant was suspended from 19 April, 2018 until 24 August, 2018 when her employment was terminated. During this period the Complainant’s solicitor wrote to the Respondent on a number of occasions in order to raise serious concerns in relation to the investigation process and the fairness of the procedures being applied thereto. However, the Respondent’s Investigator, Mr. A failed to respond to this correspondence. It was submitted that there were serious delays encountered in attempting to defend the Complainant as a result of the Respondent’s failure to answer reasonable questions in relation to the investigation process. The Complainant was entitled to ask evidentiary questions in order to ensure that she was provided with a fair, impartial, objective and an investigation which complied with fair procedures and natural justice.

The Complainant contends that the following procedural deficiencies occurred in relation to the investigation and disciplinary process concerning the allegations of serious misconduct:

·         The Complainant was never informed as to what company property or information she was alleged to have given to Mr. and Mrs. X. It was submitted that by failing, neglecting or refusing to furnish this information to the Complainant the Respondent permitted an investigation to ensue without affording her the right to challenge the evidence as the evidence was not put to her.

·         The Complainant was suspended on 19 April, 2018 on foot of an allegation that she had removed company property from the premises. However, this allegation only came to light following a statement made by Mr. C (Company Employee) during the investigation process which was subsequent to the date her suspension. This statement was not signed or dated by Mr. C and the Complainant was not afforded the right to cross-examine Mr. C or to challenge the allegations made in his statement.

·         Mr. C gave a written statement to the Investigator as part of the investigation process that he assisted the Complainant to remove a filing cabinet from the office in the knowledge that this property was being forwarded to Mr. X. However, Mr. C was not sanctioned in a similar manner as the Complainant.

·         The Complainant was furnished with copies of telephone bills during the disciplinary process which clearly showed that other members of staff were in contact with both Mr. and Mrs. X. However, these employees were not suspended or sanctioned in any way.

·         The Respondent did not inform employees that they could not speak to Mr. and Mrs. X and the company would not be permitted to give such an instruction.

·         The Complainant was not furnished with all relevant information during the investigation/disciplinary process relating to the allegation that she had facilitated the Respondent company to be charged by a motor repair company for works it carried out on a vehicle owned by a third party.

·         The appeal process following the Complainant’s dismissal was also procedurally flawed. The appeal hearing was heard by the person who suspended her (namely, Mr. B, Director) and he agreed at the hearing that he was not objective. Mr. B did not adhere to fair procedures in relation to the manner in which the appeal was conducted, had no idea as to what the remit of the appeal hearing was and reintroduced an allegation against the Complainant that had been held unproven during the disciplinary hearing.

The Complainant submits that in circumstances where the Investigator was charged with the responsibility of ascertaining if there was a wrongdoing, they were obliged to ensure that the highest standards of fair procedures and natural justice were met. The Complainant’s constitutional rights to her good name and to earn a livelihood were in jeopardy as a result of the investigation and this paced a high burden on the investigator to discharge their duties pursuant to SI No. 146/2000 (Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 and natural justice and fair procedures. The Complainant submits that she was totally denied her rights in relation to procedural fairness in relation to the manner in which the disciplinary process was conducted.

The Complainant relied upon a number of cases in support of her position, namely: Michael Lyons –v- Longford Westmeath Education and Training Board 2017 IEHC 272,The Bank of Ireland -v- Reilly (2015) IEHC 241, Canavan -v- An Garda Síochana (2016) IEHC 225,Re Haughey (1971) IR 217, Flanagan -v- UCD (1988) 1 IR 724, Gallagher –v- The Revenue Commissioners (1995) 1 IR 55, Borges -v- The Fitness Practice Committee [2004] 1 IR 103, Hennessy -v- Read and Write Shop Limited UD192/1979 and Looney & Co. Limited -v- Looney UD843/94.

The Law

Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides:

“(1) Subject to the provisions of this section, 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.

…

(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) not relevant

(b) the conduct of the employee

(c) not relevant

(d) not relevant

(6) 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 or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

In reaching my decision I have taken into consideration of all written and verbal submissions of the parties and I have had full regard to the evidence adduced in the course of the proceedings.

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

The Respondent contends that the Complainant was dismissed as a result of serious misconduct following the conclusion of a thorough investigation and disciplinary process which fully complied with the principles of fair procedures. The Respondent contends that the Complainant refused to participate in the investigation relating to the allegations of serious misconduct and refused to speak at the disciplinary meetings, with only her solicitor speaking on her behalf at the disciplinary and appeal meetings. The Respondent contends that the Complainant failed to provide a plausible explanation to disprove the allegations of serious misconduct during the entirety of the disciplinary process and she demanded that the Respondent simply prove its case and sought to create confusion by alleging a lack of fair procedure.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly[1] where it was held that: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “.

In the case of Samuel J. Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”.

Therefore, the issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are whether the Respondent acted reasonably in dismissing the Complainant and whether the dismissal adhered to the principles of fair procedures.

In considering these issues, I note that it was not in dispute that the Respondent initiated a disciplinary investigation process on 19 April, 2018 in relation to two alleged acts of serious misconduct by the Complainant and that she was suspended with pay on this date pending the completion of the disciplinary process. The Complainant was informed on 19 April, 2018 that the alleged acts of serious misconduct related to the following matters, firstly, that she had disobeyed a reasonable instruction from the company to immediately report any contact with either Mr. and Mrs. X, who had been suspended from the company, not to provide those individuals with any information they requested and removing three files’ documents from the company on 18 April, 2018 and secondly, that she had failed to deposit a cheque in the company’s bank account. The Complainant was subsequently notified on 10 May, 2018 and 5 June, 2018 respectively of two further alleged acts of serious misconduct which were to be investigated as part of the disciplinary process, namely that she took without authorisation the company’s petty cash box (containing €700) from the office and had facilitated the company to be charged by a motor company for works carried out on the vehicle of a third party (namely Mr. X).

The Respondent adduced evidence that Mr. X (Managing Director) and Mrs. X (Office Manager) had been suspended from their respective positions within the company in April, 2018 on foot of serious allegations that they had defrauded the company of significant sums of money (combined hundreds of thousands of euros) which almost resulted in the closedown of the Irish branch of the business. The Respondent contends that it was against the backdrop of these events that the company Director, Mr. B, issued a direction to all staff on 17 April, 2018 that any contact with Mr. and Mrs. X would be a serious matter and should be immediately reported to the company. The Respondent adduced evidence that information subsequently came to light that the Complainant had contact by telephone with Mrs. X on six occasions on 18 April, 2018 and that she had also removed three files’ documents from the office on this date for delivery to Mr. X.

Having regard to the evidence adduced, I am satisfied that the Complainant was aware of the instruction issued by Mr. B on 17 April, 2018. I am also satisfied that it was not unreasonable for the for the Respondent to suspect, based on the information available to it on 18 April, 2018, that the Complainant had disobeyed an instruction from management to immediately report any contact with Mr. and Mrs. X and not to provide those individuals with any information. I do not accept the Complainant’s contention that she was targeted by the Respondent as a result of having made representations for fairness to be shown to Mr. and Mrs. X following their suspension or because of the fact that she was a personal friend of Mrs. X. On the contrary, I am satisfied that it was not unreasonable for the Respondent to suspend the Complainant on full pay in the circumstances and to initiate a disciplinary investigation in relation to the allegations of serious nature when taken in the context of events which were unfolding within the company surrounding Mr. and Mrs. X at the material time in question.

I note that the Respondent subsequently conducted an investigation and disciplinary process in relation to the matter and the Complainant was found guilty in respect of two of the allegations, namely, that she had disobeyed a reasonable instruction from the company to immediately report any contact with either Mr. and Mrs. X, not to provide those individuals with any information they requested and removing three files’ documents from the company on 18 April, 2018 and secondly, she had facilitated the company to be charged by a motor company for works carried out on the vehicle of a third party (namely, Mr. X). The Investigator concluded that there was insufficient evidence to substantiate the other two allegations of serious misconduct and these matters did not proceed to the disciplinary hearing. The disciplinary hearing was conducted by Mr. E (Chief Financial Officer) and it was ultimately decided by him that the Complainant had committed the two aforementioned acts of serious misconduct. The Complainant was dismissed from her employment in relation to these matters following the conclusion of the disciplinary process and the dismissal was upheld following an appeal.

The Complainant denies the allegations of serious misconduct and contends that the manner in which the investigation and disciplinary process was conducted was totally lacking in procedural fairness. The Complainant contends that the Respondent failed to provide her with all relevant information in relation to the allegations of serious misconduct, and that she was never informed about the precise nature of the company property that she was alleged to have removed from the premises. The Complainant contends that there were a number of fundamental flaws in the investigation/disciplinary process including the manner in which her suspension was effected, that the Respondent withheld relevant information, she was denied the opportunity to challenge the evidence and/or cross-examine material witnesses during the process and the persons who carried out the investigation and appeal were not objective or impartial.

I note that the Complainant in her oral evidence at the Hearing did not dispute that she had removed property from the company’s premises with the assistance of Mr. C on 18 April, 2018 and brought it to Mr. X’s home that day. However, she contended that the property which she removed on this date was not belonging to the Respondent but rather was personal property belonging to another company owned by Mr. X, which she had also done work for previously. It is clear that the Complainant failed to actively participate in the investigation/disciplinary hearing, and therefore, did not provide an explanation or advance any defence during the disciplinary process in response to the allegations of serious misconduct.

I note that it was held by Barrington J. in the Mooneycase that: “It is important to emphasise that the dismissal proceedings were not criminal proceedings and it was not sufficient for a person in the position of the plaintiff simply to fold his arms and say:- “I’m not guilty. You prove it.” To attempt to introduce the procedures of a criminal trial into an essentially civil proceeding serves only to create confusion”. In the present case, I am satisfied that the Complainant was afforded ample opportunity throughout the course of the disciplinary process to provide an explanation or advance a defence in relation to the allegations of serious misconduct but that she failed to do so. In the circumstances, I am satisfied that it was not unreasonable for the Respondent to conclude that the Complainant had, in fact, acted in the manner alleged and was therefore guilty of the two acts of serious misconduct which were dealt with during the course of the disciplinary hearing. In all the circumstances of this case, I find that the actions of the Respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the Complainant’s dismissal.

The next issue which I must consider relates to the procedural fairness or otherwise of the Complainant’s dismissal. The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[2] sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. In considering this matter, I am satisfied that the Respondent had an established Grievance and Disciplinary Procedure in place which conforms to the general principles and procedures enunciated in the Code of Practice. I am also satisfied that the Complainant was brought through the various stages of the disciplinary process, namely suspension, investigation, disciplinary hearing and appeal in relation to the allegations of serious misconduct.

Suspension

On the issue of suspension, I note that the Respondent informed the Complainant both orally and in writing about her suspension on 19 April, 2018. It was held by Noonan J. held in the case of Bank of Ireland –v- O’Reilly that: “It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.” As I have already stated above, I am satisfied that it was not unreasonable for the Respondent, in the circumstances, to suspend the Complainant on full pay and to initiate a disciplinary investigation into the allegations of serious misconduct especially in light of the information available in relation to her contact with Mr. and Mrs. X and the gravity of the events that were unfolding within the company at the material time in question.

However, I have concerns about the manner in which the suspension was effected and in this regard, I have taken cognisance of the Complainant’s evidence that she was called to a creditors meeting on 19 April, 2018 and her contention that she was subsequently “ambushed“ without any prior notice or the opportunity for representation that the real purpose of the meeting was to inform her about the suspension. It was not in dispute that this meeting was attended by Mr. B, Director and Mr. A (who was subsequently appointed as the Investigator) on behalf of the Respondent. The Complainant adduced evidence that the tone of this meeting was very hostile and intimidating and that Mr. B, Director, called her a “f…ingliar”, shouted obscenities at her and threw the suspension letter at her after informing her about the suspension. I note that neither Mr. B nor Mr. A attended the oral hearing to give evidence in relation to this meeting and therefore, the Respondent was not in a position to offer any rebuttal evidence in relation to the Complainant’s account of the events that transpired at this meeting. On balance, I accept the Complainant’s evidence in relation to the events that transpired at this meeting and I find that the manner in which the suspension meeting was conducted did not meet the required standards of procedural fairness.

Investigation and Disciplinary Hearing

I have examined the manner in which the investigation/disciplinary hearing was conducted and it is clear that there was a significant amount of engagement between the parties from the outset of the process by way of written correspondence (both directly and through their respective legal representatives) relating to concerns raised by the Complainant’s solicitor regarding the procedures to be adopted in relation to the conduct of the investigation/disciplinary hearing. It was not in dispute that the Complainant was afforded the right of representation by her solicitor at both the investigation and disciplinary hearing stages of the process.

I am satisfied that the Respondent conducted a separate investigation and disciplinary hearing during the course of the disciplinary process with the investigation being conducted by Mr. A (Acting Managing Director) and the disciplinary hearing by Mr. E (Chief Financial Controller). The Complainant contends that there were a number of procedural flaws in the disciplinary process. She claims that the appointment of the Investigator, Mr. A was procedurally unfair in that she had been introduced to him on 17 April, 2018 as a replacement for Mr. X and had been instructed to give him any and all information in relation to the running of the company which she did without being forewarned that he was investigating her actions. I do not concur with the Complainant’s position on this issue and I accept the Respondent’s evidence that Mr. A had only been newly appointed to the role of Managing Director following the suspension of Mr. X, that he was independent and was an appropriate person to carry out the investigation.

The key areas of contention between the parties in terms of the procedures related to issues concerning the furnishing of information about the allegations of serious misconduct and the cross-examination of witnesses. On the issue concerning the furnishing of information, I am satisfied that the Complainant was made fully aware of the precise nature of the four allegations of serious misconduct and that she was provided with all relevant documentation relating thereto (including telephone records relating to her contact with Mr. and Mrs. X, e-mails from the motor company in relation to the work carried out on the vehicle owned by a third party and notes from the interview with Mr. C (Company Employee) who claimed to have assisted her to remove a filing cabinet from the office in the knowledge that this property was being forwarded to Mr. X). Furthermore, I am also satisfied that the Complainant was afforded the opportunity to fully respond to these allegations, both by way of attendance at meetings with the Investigator and by way of written response.

On the issue concerning the cross-examination of witnesses, I note that there has been differing views from the Courts in relation to the extent of the right to cross-examine in workplace disciplinary proceedings. In the Lyons case, the High Court held that both an accused person and his or her accuser have constitutional rights to use their respective legal representatives to cross-examine each other in investigations in which the accused person’s job is at stake. However, I note that Lyons appears to be at odds with other decisions of the High Court (including Shortt v Royal Liver Assurance Ltd [2008] IEHC 33 and O’Leary v An Post [2016] IEHC 237) and with decisions of the Supreme Court in cases such as Mooney v An Post [1998] 9 ELR 238 and Rowland v An Post [2017] 1 IR 355. Those other decisions implied that cross-examination will be an entitlement in some, but not all, cases in which an individual’s job is at stake. I take the view that it remains the case that an accused person always has the right to challenge (in an appropriate manner) the evidence against him or her and that there will be some circumstances in which an accused person will be entitled to cross-examine his or her accusers.

In the present case, the Respondent adduced evidence that the Investigator interviewed Mr. C during the investigation process and that he had indicated that he was requested by Mr. X to assist the Complainant to remove a cabinet and a box containing a number of suspension files from the company’s premises and into her car. The Respondent adduced evidence that Mr. C confirmed to the Investigator that he duly obliged with this request in assisting the Complainant to remove the said property from the premises into her car. The Respondent contends that the items which were removed from the premises on this occasion were company property whereas the Complainant disputes this contention and claims that they were personal items belonging to Mr. X. I note that the Investigator did not take a written statement from Mr. C in relation to this matter but rather made a handwritten note of the interview which was subsequently forwarded to the Complainant for information and reply. I am satisfied that the oral testimony provided by Mr. C to the Investigator was a crucial part of the evidence relied upon by the Respondent during the disciplinary process in terms of reaching the conclusion that the Complainant was guilty of the alleged act of serious misconduct in question.

Having regard to the evidence adduced, I am satisfied that the Complainant was not afforded the opportunity to challenge the evidence of Mr. C, either during the investigation or disciplinary hearing, despite the fact that he was an employee of the company and would have been readily available to attend meetings during the investigation/disciplinary process had the Respondent instructed him to do so. It is clear that there was a dispute between the parties in relation to the nature of the items that the Complainant removed from the premises on this occasion and I am satisfied that this question was a key issue which needed to be addressed in relation to the investigation of the material allegation of serious misconduct. In the circumstances, I find that the Respondent’s failure to allow the Complainant the opportunity to cross-examine or challenge the evidence of Mr. C in relation to his account of the events that transpired on this date amounted to a fundamental deficiency from a procedural perspective in the conduct of the disciplinary process.

The Complainant also raised concerns regarding the Respondent’s failure to make available for cross-examination the person employed by the motor company (namely, Mr. D) who provided information in relation to her alleged facilitation for works to be carried out on a vehicle owned by a third party. On this matter, I note that the Complainant was provided with a copy of the invoice from the motor company in relation to the works carried out on this vehicle and with a copy of the email from Mr. A to the Respondent which stated: “… at the time of the repair I dealt with [the Complainant] about this vehicle. I was informed not to put the reg on invoice regarding nct repairs …”. I am satisfied that the Complainant was provided with all relevant details in relation to this allegation and was afforded the opportunity to respond but failed to do so. I would also draw an important distinction in relation to the significance between the Respondent’s failure to make available Mr. D available for cross-examination as opposed to the circumstances which pertained in relation to Mr. C (who was a crucial witness in relation to the other allegation of serious misconduct which she was found to have committed). In the case of Mr. D, this person was not an employee of the Respondent, and therefore, it did not have the power to subpoena or compel him to participate or provide evidence during the course of the disciplinary process.

Appeal

It was not in dispute that the Complainant was afforded the right to appeal her dismissal and that the dismissal was upheld on appeal. The Complainant contends that the appeal process was also fundamentally flawed for a number of reasons including the fact that the person who heard the appeal, namely Mr. B (Director), was the person who had suspended her and was also involved in proceedings throughout the disciplinary process. The Complainant claimed that Mr. B was lacking in objectivity, was not aware of his remit in relation to the appeal and sought to re-open the allegation in relation to the petty cash which had already been withdrawn on conclusion of the investigation. I did not have the opportunity to hear evidence from Mr. B as he did not attend the oral hearing, and therefore, I have not been presented with any direct evidence by the Respondent to contradict the Complainant’s version of events in relation to the conduct of the appeal hearing. I also note that the Respondent did not adduce in evidence any notes or minutes in relation to the appeal meeting. Having regard to the evidence adduced, I am satisfied that Mr. B had a significant involvement in the disciplinary process and that his appointment as the appeal officer raises serious concerns regarding the independence and impartiality of the appeal process. In the circumstances, I find that the manner in which the appeal hearing was conducted did not conform to the required standards of procedural fairness.  

Having regard to the totality of the evidence adduced, I am satisfied that the aforementioned procedural deficiencies which occurred throughout the disciplinary process, when taken together, has fatally imperilled the decision to dismiss the Complainant. However, I also find that the Complainant, through her behaviour, and her failure to actively participate in the disciplinary process contributed significantly to her dismissal and this has been taken into account in considering redress.

In the circumstances, I find that the Complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts is well founded.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded.

I find that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded I note that the Complainant was being paid a gross monthly wage of €3,882.99 by the Respondent at the material time of her dismissal. The Complainant adduced evidence that she obtained alternative full-time employment on 5 January, 2019 in respect of which she is currently earning a gross monthly salary of €2,200.00. I have received submissions from the parties in relation to the Complainant’s loss arising from her dismissal and her efforts to mitigate those losses, of which I have taken into account in deciding the quantum of the award of compensation.

I find that the Complainant contributed significantly to her dismissal and having regard to this fact, I deem that an award of €6,000.00 (six thousand euro) to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from his dismissal.

Unfair Dismissals Acts, 1977 – 2015 – Section 6(4) – Gross Misconduct – Dismissal Procedurally Unfair - Complaint Well Founded – Compensation Awarded