Worker

Employer

Anonymised Parties

A Worker

An IT Solutions Company

Representatives

Self-represented

 Jacob and Twomey Solicitors LLP

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002371

19/03/2024

The Worker commenced employment on 7 February 2022 and was dismissed on 27 March 2024. The Worker disputes the fairness of a workplace investigation into allegations made against him of bullying and harassment. He also contends that the sanction of dismissal was disproportionate. The Employer submits that the Worker was fairly dismissed for gross misconduct following a fair investigation and disciplinary hearing. The Employer also contends that the Worker referred his dispute to the Workplace Relations Commission (WRC) without exhausting the disciplinary process.

The Employer dismissed the Worker on foot of the findings of an investigation into allegations made by a work colleague. The Worker feels that he was unfairly treated during the investigation process. The Worker does not agree with some of the findings of the investigation. Many of the allegations were false. The Worker did not agree with the manner in which the investigation was conducted. Other persons were interviewed before the Worker and therefore were given an upper hand. The Worker does not agree with the standard of proof (on the balance of probabilities) used by the Investigator. A draft investigation report was issued to the Worker and he made his concerns known but his comments were ignored. The external HR consultancy firm engaged to conduct the investigation was a client of the Employer. It was not appropriate that this company was engaged to do the investigation. The Worker received a final copy of the investigation outcome report and he told the Managing Director that he would like to appeal the outcome of the investigation but he did not receive a response. He was then informed by the Managing Director that he was dismissed for gross misconduct. He was advised that he had the right to appeal that decision to a named person within 5 days, but the Disciplinary procedure provided for 10 days to appeal. The worker emailed this person to advise that he wished to appeal and received an out of office reply. This person would not be back in the office before the 5-day appeal window elapsed. He received an invitation to an appeal hearing but he did not attend the appeal hearing as he obtained legal advice and was informed by the WRC and FLAC that he did not have to attend the appeal hearing.   

The Worker wanted his name cleared. He contends that the findings of the investigation were false and unsupported by evidence, and he was denied an opportunity to appeal the outcome of the investigation. Further, he feels his dismissal was disproportionate in the circumstances.

The Worker had a personal relationship with a co-worker which had ended. The Worker appeared to have difficulty accepting this relationship had ended. The Worker harassed this co-worker thereafter. The Employer addressed this initially in an informal manner with the Worker and he was directed not to approach his co-worker in relation to personal matters while at work. However, the Worker ignored this instruction on several occasions. A formal written complaint of bullying (though the conduct complained of involved harassment and sexual harassment) was received by the Employer in relation to the Worker’s conduct towards his co-worker. The Worker was suspended on 13 December 2023 pending an investigation into the complaint of bullying.

The Employer engaged an external workplace investigator to complete an investigation into the complaint. The investigation was conducted under the Employer’s Dignity at Work Policy. The Worker was interviewed on 23 January 2024 as part of that investigation. On 13 March 2024, the Employer received the investigation outcome report. The investigator found that the Worker had engaged in a campaign of inappropriate behaviour towards the co-worker which included acts of harassment and sexual harassment.

On 15 March 2024, the Worker was invited to a disciplinary hearing. He was advised of his right to be accompanied. The Worker asked that the proposed date for the disciplinary hearing be pushed out so that he could avail of legal advice. The Employer facilitated this. The disciplinary hearing took place on 22 March 2024. The Worker was accompanied by a work colleague at this hearing. The Worker admitted to engaging in certain acts. On 27 March 2024, the Managing Director wrote to the Worker to notify him of his dismissal for conduct amounting to gross misconduct. He was advised of his right of appeal to the CEO. On 21 April 2024, the Worker advised the Employer that he wished to exercise his right of appeal. The Employer wrote to the Worker to advise that an appeal hearing would take place on 3 May 2024. However, the Worker did not attend the appeal hearing or contact the Employer to explain his non-attendance.

The Worker presented his dispute to the WRC on 19 March 2024 before internal procedures were exhausted. The Worker did not invoke the Grievance Procedure. The Worker received a copy of the Employee Handbook on multiple occasions and was aware of company procedures in this regard. It is well established that a Worker is required to exhaust internal procedures before referring a dispute to the WRC. This has been repeatedly emphasised in decisions of the WRC. A sample of decisions were highlighted to the hearing.

In summary, it was submitted on behalf of the Employer that the Worker did not desist from approaching the co-worker despite the Employer’s repeated instructions to do so. The Worker was found after a comprehensive and fair investigation, conducted by an experienced workplace investigator, to have repeatedly sexually harassed a co-worker contrary to the company Dignity at Work Policy. During the investigation and disciplinary hearing, the Worker admitted to engaging in some of the behaviours which were the subject of the complaint. The Worker presented a dispute to the WRC despite not exhausting internal procedures.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties.

The Worker referred his dispute to the WRC on 19 March 2024. At this time, the worker was suspended from work on full pay and he was aware that a disciplinary hearing was pending following the outcome of an investigation into allegations of bullying and harassment. What prompted the Worker’s referral of this dispute to the WRC on that date was his disagreement with some of findings of the investigation. Specifically, he felt some of the findings were unsupported by evidence, and in particular, he disputed the standard of proof applied by the investigator in reaching her findings. The Worker was also concerned that a client company of the Employer was engaged to conduct the investigation. He outlined several concerns regarding the manner in which the investigation was conducted including that his co-worker (the complainant) and her witnesses had the opportunity to be interviewed before him. He also expressed concerns regarding the confidentiality of the investigation.

The Investigation

For the following reasons, I am satisfied that the allegations against the Worker were thoroughly and fairly investigated by the Employer, in line with the provisions of the Employer’s Dignity at Work Policy and the relevant Codes of Practice in the areas of bullying and harassment. I note the investigation was completed under the Dignity at Work Policy. I note the policy provides for an investigation by an external party. I note Terms of Reference were agreed for the investigation. The policy provides that “any person adversely affected” by the outcome of an investigation will be given an opportunity “to comment on the draft report and challenge any aspects of the evidence.” The Worker was offered and availed of an opportunity to comment on each of the findings within the draft report. I note the investigator considered the Worker’s comments as is evidenced in the final report. In line with the policy, a final report was issued to the Worker. I do not accept the Worker’s submission that the order in which the parties were interviewed was unfair. I do not accept that the standard of proof applied by the investigator was incorrect i.e., the civil standard of proof. I do not accept that the Employer breached confidentiality. In this regard I note that, as provided for within the company Dignity at Work at Work Policy, an Employer cannot guarantee confidentiality during an investigation. I also note in the minutes of the investigator’s interview with the Worker, she advised the Worker that she would remind all parties of the importance of confidentiality.

The Worker also expressed concerns regarding the conduct of the Employer after the final investigation report was issued. Specifically, that he was denied the right to appeal the final outcome of the investigation. I note the Dignity at Work Policy provides that in addition to the opportunity to comment on the draft report, “an employee will have the right to appeal against the outcome of the investigation”. The policy further provides that the “employee will be notified of the name of the person [to whom they may appeal] at the time” and that the employee should “appeal the findings of the investigation report within five (5) working days of the issue of the investigation report to the parties.” I note when the Worker was issued with the final report, the Worker was not informed of the name of the party to whom he should appeal. I further note that the final report was sent to the Worker on 13 March 2024, and that on 15 March 2024 the Worker was invited to a disciplinary hearing: before the 5-day appeal period had lapsed. I note the Worker informed the Managing Director that he wished to appeal the final report but this request was not acceded to. I am satisfied it was the Employer’s failure to follow the policy in this regard that prompted the Worker to refer this dispute to the WRC as he feared he would lose his job. This was not an unreasonable fear as the letter of invitation to the disciplinary hearing had made it clear to the Worker that the Employer regarded the allegations against him to be gross misconduct, and if substantiated, could result in his dismissal. I am satisfied, in this respect, the referral of his dispute to the WRC was not premature. I reviewed the Worker’s comments on the draft report. I am satisfied the investigator considered these comments as is evidenced from a reading of the final report. Further, the investigator is entitled to make her findings on the balance of probabilities. The outcome of the investigation was not irrational. While the Worker should have been afforded an opportunity to appeal the outcome of the final report given it is provided for within the Dignity at Work Policy, I am satisfied the Worker was not prejudiced by the Employer’s failure to allow him to appeal the final report.

Disproportionate Sanction of Dismissal

After the referral of this dispute to the WRC, a disciplinary hearing took place. I note the Worker requested that the initial date for the disciplinary hearing be postponed so that he could obtain legal advice. That request was facilitated. Following the rescheduled disciplinary hearing, the Employer decided to dismiss the Worker. After the Worker presented his dispute to the WRC, he made two further written submissions to the WRC on 27 March and 5 April 2024 in relation to the “claim already submitted”. In these submissions the Worker contends that he was unfairly treated and unfairly dismissed. At the hearing, the Worker outlined that he felt his dismissal was disproportionate. I note the Worker was offered the opportunity to appeal the decision to dismiss him and a date was agreed for the appeal hearing. The appeal hearing was to be conducted by a different senior manager and an external HR consultant. The Worker explained that he did not attend the disciplinary appeal hearing as he had already referred a dispute to the WRC. The Worker outlined to the hearing that he had received legal advice that he did not have to attend the disciplinary appeal hearing. I am satisfied therefore, that the Worker’s decision to proceed with his dispute, before exhausting the disciplinary appeal process, was an informed one. I accept the Worker was advised he had 5 days to appeal the disciplinary sanction, when the Disciplinary Procedure provides for 10 days to appeal, however, I am satisfied he was not prejudiced by this error. If the Worker felt the sanction of dismissal was disproportionate, he should have attended the disciplinary appeal hearing, instead of waiting to ventilate that issue on the day of the WRC hearing.

Conclusion

As per the relevant Codes of Practice, I have reviewed the investigation process and I am satisfied the Worker was afforded due process and was not prejudiced to any significant degree. The Worker’s primary concern was that he felt he was not afforded an opportunity to defend himself, and that he was blamed for saying and doing things that he simply did not do. Having reviewed the detailed submissions of the parties, I am satisfied the Worker had ample opportunity to air ‘his side of the story’ with respect to his conduct in work and to present any evidence he wished to. The Worker was given every opportunity to be heard during the investigation and to comment on the draft report. He was given the opportunity to attend a properly convened disciplinary hearing at which he was afforded a chance to comment on each of the allegations and present further evidence if desired. He was also invited to appeal his dismissal. Unfortunately, the Worker chose not to attend the disciplinary appeal hearing, thereby denying himself an opportunity to appeal the disciplinary sanction. 

In the circumstances of this dispute, I recommend the Worker accepts the findings of the bullying and harassment investigation and the disciplinary sanction imposed.

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I recommend the Worker accepts the findings of the bullying and harassment investigation and the disciplinary sanction imposed.

Investigation. Disciplinary Hearing. Referral of dispute before exhausting company procedure.