The Tribunal (heard Mar/Oct 2013) decided in this case that the employee had been forced to sign a letter of resignation in a pub car park. Although the claimant was never told in writing what was being addressed in the investigation the case appears to be centred on allegations made by a customer of the employer who said the claimant offered him a box of chicken fillets for €20 which he bought. The facts presented by both sides in the Determination vary but the respondent’s witness stated that he did not tell the claimant who had made the complaint. As the claimant was never given any records of the meetings, nor indeed was he given a record of his interview, words such as theft, misappropriation, similar to the case above, do not appear to have been used.

The Tribunal stated “In all cases of dismissal for conduct, an investigation by the employer is required”.

The Tribunal goes on “The precise requirements of each investigation will be determined by the facts of the case. But the onus will be on the employer to show that it was “fair” in the sense of being open minded and “full” in the sense that no issue which might reasonably have a bearing on the decision was left unexplored. If an investigation fails to meet these requirements, the decision to dismiss is likely to be found unfair.”

Here again the EAT is stating that the facts of each case will impact on what type of process will be considered fair in the circumstances. The Determination goes on to helpfully describe the steps that an employer will be required to follow in general and then proceeds to consider the relevant particular issues in this case. The first difficulty described was that the claimant was not given the identity of the person, C, who made the allegations “let alone giving him a copy of C’s statement. This is fundamentally unfair.”

In theory the Tribunal could have stopped there and found the dismissal unfair but went on to say employees “must be made aware of the potential consequences of his alleged misconduct which may put him at risk of dismissal” and this was not done in this case.

The Tribunal noted that a witness identified by the claimant (to talk about the standard practices) was not called to give evidence, although it is unclear whether this refers to giving evidence at the Tribunal hearing or during the investigation. However, it is a problem either way as the witness evidence was never put to the claimant during the investigation and indeed may never have been collected. If the witness was not present at the Tribunal either then the evidence could not be tested.

Case Learning Points

• The claimant was not aware of all allegations and complaints that formed the basis of the proposed dismissal. In particular, the ‘offence’ that he was accused of, and was being investigated for, was not put to him. 8
• He was not made aware of the potential consequences by the employer, i.e. that the process could result in dismissal.
• The employer did not follow its own policy in the manner the allegations were investigated.
• Witness evidence was not presented to the claimant or to the Tribunal.

The investigation in this case appears to have entirely relied on the allegation made by the employer’s customer. There is no reference to the employer checking that the goods belonged to it and that they were missing. Nor is there any reference as to how they might have gotten into the claimant’s delivery van, i.e. how he “appropriated” them. Therefore, there appears to have been no verification that the “property”, the box of chicken fillets, existed other than the witness’s assertions or, if it did exist, that it was the employer’s property. If an employer cannot show that the article was its property, “Ownership”, it cannot subsequently show that there was an “intention to deprive” it of that property.

Further, no CCTV or stock listings were shown to the claimant and indeed there is no reference to any such evidence being sought or considered by the employer.

The Tribunal was extremely critical of the conduct of an investigation in a pub car park and goes on to find that the claimant’s “ “resignation” was a forced resignation in unacceptable circumstances” and awarded the claimant €30,000. As an aside, it seems to me that by forcing the matter as a resignation the employee was further denied an opportunity to appeal his dismissal to his employer.