Background:

The Complainant was a General Operative on a factory floor where he had served as an employee and union shop steward for twenty years. On 12 May 2021 he was involved in a verbal disagreement with another employee which evolved into a physical altercation outside the Respondent’s premises. The Respondent placed the Complainant on leave with pay during an investigation of the incident, which included the review of CCTV footage of the altercation. The Complainant was subject to a disciplinary procedure and was dismissed on the ground of gross misconduct on 25 August 2021. The Complainant appealed, which was unsuccessful, and then referred the matter to the WRC for unfair dismissal on 14 October 2021.

Outcome:

The Adjudication Officer reviewed the evidence gathered by the investigator and put before the Respondent during the disciplinary process. The Adjudication Officer found that many of the facts the Respondent asserted about the altercation, including that the Complainant and his fellow employee needed to be separated, that the Complainant threw a punch, was unsupported by the evidence before the Respondent. The Adjudication Officer found it was inappropriate for the Respondent to find the Complainant’s behaviour constituted bullying, harassment or discrimination. No complaint of such had been made and his actions did not meet the standards of these behaviours as stated in the Respondent’s Code of Conduct. The Adjudication Officer found the Respondent’s decision to dismiss the Complainant to be outside the “band of reasonableness” and was substantively unfair. The Respondent’s attempt to “re-investigate” the incident in the disciplinary stage, instead of only using the evidence found in the investigatory process, made the process procedurally unfair.

While the Respondent objected very strongly to the prospect of the Complainant returning to their employment, the Adjudication Officer did not accept that a reasonable employer would lose faith in an employee with 24 years’ service because of the type of incident in question, which was not criminal or quasi-criminal in nature. Considering the size of the Respondent’s factory, and the age of the Complainant (61 years), the Adjudication Officer directed the Complainant to re-engage the Respondent, with the intervening period between his unfair dismissal to the date of his re-engagement to be regarded as a period of unpaid suspension.

Practical Guidance for Employers:

When an employer undergoes an investigation of an incident, they must only have regard to facts found during that investigation process. A disciplinary process should not “re-investigate” an incident, but instead must only make a decision based on the investigation’s findings of fact. In cases with long service and limited other options for employment, re-engagement or reinstatement may be ordered as a remedy for an unfair dismissal.

The full case is here:
https://www.workplacerelations.ie/en/cases/2023/may/adj-00035538.html