Background:

The Complainant worked in a construction-related role for the Respondent, a hotel, from October 2017 until his dismissal on 31 May 2021 for alleged gross misconduct. The Complainant alleged he was denied fair procedures in a number of allegations made against him, including an alleged assault against a fellow employee of the Respondent. The Complainant contended he was not provided an opportunity to review the evidence against him, was not given the opportunity to interrogate or cross-examine that evidence, and was not able to provide any rebuttal evidence to evidence taken by the Respondent’s investigation procedure. The Complainant claimed the Respondent’s investigator only interviewed the Complainant prior to obtaining other evidence, thereby preventing the Complainant from exercising his natural justice rights. Further, the Complainant claimed colleagues who were cited for similar behaviour were not dismissed or punished in any similarly harsh way as the Complainant, and that this was due to the Complainant’s national origin and/or race.

The Respondent said they followed their investigation and disciplinary procedures and acted within the margin of appreciation they enjoyed as an employer. They also alleged that a claim under the Unfair Dismissals Act 1977 was not the correct forum to progress a claim of race- or national origin-based discrimination. The Complainant had an opportunity to appeal the decision made against him within five days of the decision, but elected not to, and by doing so he failed to engage the procedures available to him to remedy any problems with the investigation or disciplinary process. Given the seriousness of the allegations in question, including an assault so severe that it caused its victim to loose a tooth, the Respondent claimed it was justified in dismissing the Complainant and did so without discrimination on any unlawful ground.

Outcome:

The Adjudication Officer found that the Complainant had been unfairly dismissed. His treatment had been different than that of his colleagues engaged in the same behaviour and claims of such discrimination were permissible under the Unfair Dismissals Act 1977. The Adjudication Officer also found the Complainant’s dismissal was unfair because he was not provided the opportunity to respond to the case against him after it had been collected in full. In compensation, having regard to the difficulties the Complainant had in obtaining alternative employment during the COVID-19 pandemic, the Adjudication Officer made an award of €11,520.

Practical Guidance for Employers:

Getting a statement from the subject of an investigation at its start may be the right thing to do in some situations. However, in such a case an employer should also provide that subject the opportunity to respond to the evidence gathered at the end of the investigation process as well, as part of fair procedures.

The full case is here:
https://www.workplacerelations.ie/en/cases/2023/september/adj-00035389.html