From a legal and practical perspective, the Select Service Partner, Ireland t/a SSP Ireland v Albert Fordjour case is of great relevance as it contains a valuable lesson for all employers with regard investigating alleged issues of misconduct and furthermore in reaching their decision the Labour Court has thoroughly set out some legal principles in relation to fair procedures which must be borne in mind when investigations, and indeed disciplinary processes, are being implemented. A further interesting point to note from the Determination issued is the manner of award which was made.

Summary and Background Facts

The abovementioned case came before the Labour Court on foot of an appeal which was lodged by Select Service Partner, Ireland t/a SSP Ireland (hereinafter referred to as “the Respondent”) after the WRC made an award against them under the Unfair Dismissal Acts 1977-2015 and ordered that Mr Fordjour (hereinafter referred to as “the Complainant”) should be re-engaged.

The case related to an incident which occurred on 11th March 2016. In essence, it was alleged by a fellow employee that on the aforementioned date she was in a lift with the Complainant and that when she went to exit the lift that the Complainant, who was on the phone at the time, placed his arm around her shoulder, pulled her towards him and attempted to kiss her on either her lips or her cheek. For his part, the Complainant’s position was that he placed one arm around the other employee’s shoulder and hugged her but he denied making any attempt to kiss her.

On foot of a complaint received by the employee involved in the incident, an investigation was initiated. At the outset of the investigation, the Complainant was summoned to a meeting with the person tasked with investigating the allegation and the content of the letter of complaint was put to him. Of note in this regard is the fact that the Complainant was not given any notice of the nature of the meeting he was attending.

Following on from the above, the Complainant raised issues with regard the nature of the questions being put to him by the investigator and he argued that they showed bias. On foot of the foregoing, the Respondent chose to appoint another person to conduct the investigation. The investigation which was conducted involved interviewing the Complainant and putting the content of the letter of complaint to him and further reviewing of CCTV footage of the incident. However, of note is the fact that the employee who made the complaint against him was not interviewed and rather a decision was taken to rely upon her letter of complaint. Of further note is the fact that a decision was taken to not interview two witnesses who were put forward by the Complainant. The Complainant asserted that he had a more developed relationship with the employee involved in the incident and therefore the context within which the incident took place was relevant. The Complainant further submitted that the witnesses he had put forward would help establish the foregoing. At the hearing before the Labour Court the investigator reasoned that she saw no value in the witnesses nominated and that she chose not to interview them for that reason.

At the conclusion of the investigation, a decision was made that the matter should proceed to the disciplinary stage. The person tasked with this stage of the process again interviewed the Complainant and reviewed the CCTV before issuing a decision that the Complainant’s conduct amounted to gross misconduct and that accordingly he should be dismissed. The person tasked with the disciplinary did not interview the witnesses put forward by the Complainant as these employees were not present when the incident happened and therefore she saw no value in interviewing them.

This decision to dismiss the Complainant was upheld after an appeal.

Labour Court Decision

In its decision, the Labour Court was critical of the conduct of the Complainant in that it stated “that such behaviour amounts to an infringement of the employee’s rights to bodily integrity that cannot be easily dismissed as a well-intentioned misunderstanding. Furthermore, the Court finds the behaviour an abuse of authority in the workplace that cannot be treated lightly.”

However, and in spite of the censure issued with regard the Complainant’s behaviour, the Labour Court found in his favour as it formed the view that the process which had been implemented by the Respondent was flawed. In particular, the Labour Court was critical of the failure to interview the employee who had made the complaint and the witnesses which were put forward by the Complainant. The following extract from the decision succinctly sums up the position adopted by the Labour Court –

“In those circumstances the Court must find that while the Complainant’s behaviour appears to be totally unacceptable it cannot find that he was afforded fair procedures in the manner in which the Respondent decided that appearances and reality were identical as they did not properly investigate and decide one major element of the Complainant’s defence.”

The Labour Court went on to determine that owing to the procedural deficiencies present and the Complainant’s contribution to the dismissal, that the Complainant was entitled to reengagement and they held that he would be re-engaged from the 8 January 2018 with the period from the 23rd May to the 8 January 2018 to be considered a period of suspension without pay. The employee was also to be given a final written warning with effect from the 8 January 2018 and was to be re-engaged at one level below the grade which he had prior to the dismissal.

Legal Principles Applied

In reaching its decision the Labour Court referred to the basic principle that the purpose of any investigation is to establish the truth of what occurred. In essence, the Labour Court determined that in the absence of interviewing the Complainant or the witnesses put forward by the Complainant, that the persons tasked with hearing the investigation, disciplinary and appeal stages were not in a position to determine the truth of the assertions being put forward by the Complainant and that it was, therefore, a flawed procedure.

In the Determination issued by the Labour Court there is a very thorough overview of the law on the issue which was before the Court and reference is made to a number of cases. I am of the view that the following quotation from Justice Charlton in Galway-Mayo Institute of Technology v Employment Appeals Tribunal and others [2007] IEHC 2001 summarises the principle applied by the Labour Court in the instant case:

“When decision-making body is drawn into the process of attempting to find out the facts, then it does so in fulfilling the fundamental principle that justice requires to know the truth before it can decide on the remedy. Secondly, a Judge applies a rule of law to his or her decision and a Tribunal is no different from that. Certainty of legal principle is the opposite end of the spectrum to the arbitrary decision making that characterises a totalitarian society.”

Commentary

The case serves as yet another reminder to employers of the importance of adhering to the principles of natural justice and fair procedures when carrying out investigations and disciplinary processes. The fact is that there are countless examples of cases where the employee’s conduct on its own merits gives justification for dismissal, but notwithstanding the foregoing employers lose owing to a failure to properly implement fair procedures.

The Select Service Partner case emphasises this point in that the Labour Court set out that it appeared that the Complainant’s conduct was totally unacceptable but yet he succeeded due to a failure to implement proper procedures. The importance of fair procedures is highlighted not only by the case law but also by the provisions of Section 6(7) of the Unfair Dismissals Acts and further by the Code of Practice on Grievance and Disciplinary Procedures [S.I No. 146 of 2000].

The question as to what amounts to fair procedures varies in certain respects from case to case and this issue has been made somewhat more complicated by the decision in Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272 which raised matters that need to be considered with regard rights to legal representation and cross-examination. These issues were not dealt with in the within case and accordingly we will not deal with them for the purpose of this article. Rather, we will focus on some important learning points that can be taken from the Select Service Partner case which are applicable in all circumstances.

The case emphasises the point that all employees are entitled to fair procedures which necessitates that full and thorough investigations take place in order to ensure that all relevant facts are established. This means that at a minimum employees must be put on notice (in writing) of the allegations they are facing and in the course of the investigation the employee must be furnished with all documentation relied upon and must be given a chance to provide an explanation. Clearly, employees must also be afforded the right to avail of appropriate representation, which as alluded to above can vary in that in certain circumstances this can mean legal representation. As also alluded to above, in certain circumstances employees may also have a right to cross-examine witnesses.

Following on from the above and to deal with the more specific takeaways from the Select Service Partner case, it is clear that in order to ensure compliance with fair procedures the following must be done -

1. All witnesses should be interviewed and reliance should not be placed only on written statements or complaints.

1. If an employee puts forward witnesses in his or her defence the person investigating matters should interview such witnesses.

In essence, when dealing with disciplinary matters employers must ensure that any defence put forward by an employee is dealt with objectively and is investigated thoroughly. This is the case no matter how farfetched the defence may seem to the person investigating the matter. The fact is that a failure to investigate a defence being put forward by an employee is a basic procedural flaw as by doing the foregoing the employer leaves themselves in a position where all relevant facts have not been established and therefore a basic tenet of the principles of natural justice and fair procedures has not been adhered to. The fact is that a procedurally flawed dismissal is always an unfair dismissal and therefore the potential consequences from an employer’s perspective are significant.

In light of the above, it is imperative that employees who are being tasked with investigating matters and chairing disciplinary hearings are fully aware of their responsibilities and are appropriately trained as to how to run investigation and disciplinary processes.

Award

The nature of the award made by the Labour Court in the Select Service Partner case is notable as I believe that it is possibly an example of an increased willingness on the part of both the WRC and the Labour Court to award re-engagement or re-instatement. There are no definitive figures to hand in this regard but from experience and from a general review of Determinations being issued I am of the view that orders for re-engagement or re-instatement have become more prevalent in recent times. In the event that the foregoing is the case it is something which all employers and legal practitioners should be conscious of.