Case came before the Tribunal as a result of a recommendation of a Rights Commissioner, this was a de novo hearing. The claimant’s employment was terminated following an internal investigation, disciplinary and appeal process; the claimant was dismissed because of gross misconduct which could only be punished by way of a dismissal. 

In regards to the allegation of gross misconduct the claimant has maintained her innocence, on this appeal prominence was given to the severity of dismissing an employee with an unblemished five year record. 
The claimant worked as a security officer with the respondent employer company, the claimant worked twelve hour nightshifts from 7pm to 7am, in the case at hand here, the claimant had completed four night shifts. 
The Safety and Security Manager stated that the claimant seemed “out of sorts”, “unsteady” and “dishevelled, when the claimant was questioned she said that she was sick. The safety and security manager noted that there was a smell of alcohol in the room and was concerned that the claimant might be under the influence of alcohol. 

On the fifth nightshift the Safety and Security Manager was of the impression that the claimant was not fit to work and so the claimant was sent home. Shortly after this the claimant was called to an investigation meeting and was accompanied by SIPTU representation. The claimant produced a medical certificate proving that she was sick on the day in question in which she had been diagnosed with a viral infection.

The claimant was found guilty of gross misconduct and dismissed. This decision was made on the basis that “the opinion of all staff that she was under the influence of alcohol”.

The Tribunal held that it must be aware of the seriousness of the allegations being made in effect that the claimant was not able to carry out the duties required of her. The court noted how certain relevant evidence was being withheld and stated that “on balance where the outcome of an investigation is going to be dismissal for gross misconduct the onus has to be with the investigator to ensure that all elements of the investigation are transparent and openly considered.” The Tribunal was highly critical of the investigation that took place stating that it was “woefully inadequate, hurried and one-sided”. 

The Tribunal held that the dismissal was unfair and therefore awarded the claimant €22,500

http://bit.ly/OUK5BW