This case is an appeal brought by the Respondent, Premier Periclase, against the Adjudication Officer’s Decision in which it was found that the Complainant, Mr. Keith Martin, had been unfairly dismissed by the Respondent. The Adjudication Officer found that the decision to dismiss was unfair and awarded compensation of €14,180.

The Complainant commenced employment with the Respondent on the 22nd of September 2008. His employment ceased on the 20th of March 2019. The Respondent’s position is that the Complainant was dismissed for Gross Misconduct. The Respondent submitted that a complaint of bullying and harassment was made against the Complainant on the 29th of January 2019 by one of their first-year apprentices. Following on from this the Respondent became aware of other issues including an incident outside of the workplace some five months previous.

Subsequently, the Complainant was invited to a meeting on the 29th of January 2019 where he was advised of the allegations and placed on suspension pending an investigation. It is the Respondent’s submission that the Complainant offered his resignation at that meeting and that he admitted that the incidents referenced in the allegations had occurred. The Complainant was advised that he should reconsider his decision to resign and that an investigation into the allegations would take place.

The Complainant was invited to a meeting with the investigator on the 7th of February 2019 and was afforded the opportunity to be accompanied by his Union representative. The Complainant was provided with copies of all statements that the investigator had at that point in advance of the meeting.  The investigator had follow-up meetings with some of the individuals. By letter of the 7th of March 2019, the Complainant was advised that two allegations were upheld and two allegations were inconclusive. The Investigator deemed that the behaviour constituted major and gross misconduct and should be escalated to a disciplinary hearing.

A disciplinary hearing took place which concluded that the events constituted major and gross misconduct and therefore warranted his dismissal. The Complainant lodged an appeal of this decision, and the outcome of the appeal was to uphold the decision to dismiss, and the Complainant was advised of same by email of the 3rdApril 2019.  It is the Respondent’s submission that the Complainant was informed in advance as to the nature of the allegation against him, was afforded the right to representation and was given the opportunity to respond to the allegations against him.  The Respondent submitted that the decision to dismiss was fair in all respects because of the seriousness of the incidents and that the Complainant contributed one hundred per cent to his own dismissal.

The Complainant submitted that he was not afforded fair procedures by the Respondent and that the outcome of the investigation was predetermined. When the Complainant was called to the meeting on 29th January 2019, he was told he was being suspended before being given an opportunity to respond or comment on the allegations that had been made.

The Complainant’s Union submitted on behalf of the Complainant that two of the four complaints are generic in nature and do not reference any specific times or dates which make it impossible for the Complainant to address those complaints. Therefore, it was the Union’s contention that the process was fundamentally flawed from start.  In addition the Complainant argued that he did not contribute to his own dismissal and that the Respondent breached their own policy.

It became clear to the Court from the Respondent’s minutes of the interviews with witnesses, that were provided to the Court, that witnesses were informed of what other witnesses said before they were asked to give their version of events. Witnesses were also encouraged by the investigator and or note taker to reference issues that were outside the scope of the investigation as set out in the initial terms of reference.

Based on the submissions before the Court, the Court found that the investigation process was fundamentally flawed and not capable of being saved by the disciplinary process which was also flawed. The Court considered that compensation was the appropriate redress in this case and therefore awarded the Complainant compensation in the sum of €9,072.78.
https://www.workplacerelations.ie/en/cases/2021/september/udd2159.html