Misconduct isn’t enough: The Workplace Relation Commission's emphasis on procedural fairness
At a glance
- A recent Workplace Relations Commission (WRC) case, A Manager v A Financial Services Company, has once again underscored the high standard of procedural fairness required when dismissing an employee.
- Despite a strong substantive case for dismissal based on clear evidence of sexual harassment and the employee’s admission of their misconduct, the Adjudication Officer (AO) found the dismissal to be procedurally unfair.
- While the Company had conducted an investigation and disciplinary hearing, its failure to offer an appeal process, to adequately consider the employee’s defence, and to follow its own appeals policy undermined the fairness of the dismissal.
A recent WRC case, A Manager v A Financial Services Company, has once again underscored the high standard of procedural fairness required when dismissing an employee.
Background
The dismissal stemmed from two incidents in which the employee accessed his female colleagues’ phones without consent and sent sexually explicit messages purporting to be from them. The employee admitted to sending these messages but stated that his conduct reflected the broader culture of sexual innuendo within the Company.
The first incident was not formally investigated, but following the second incident 16 months later, a formal complaint was made. The company initiated a formal investigation with an independent investigator.
The investigator defined each of the incidents as constituting 'severe sexual harassment'. The Company held a disciplinary hearing where they decided to dismiss the employee on the basis of the investigation outcome.
The employee subsequently brough a claim for unfair dismissal under the Unfair Dismissal Acts, claiming that he had been disproportionately penalised and that the company had not followed a fair process.
Adjudication Decision
The AO agreed that the complainant’s conduct fit the definition of sexual harassment under the Company’s policy, in that he had made unwanted sexual remarks that were offensive and disregarded the dignity and privacy of his colleagues.
However, in making the decision that the Company's process had been procedurally flawed and unfair, the AO identified several failings in the Company's dismissal process:
Failure to engage with the investigation report
The AO took the position that the classification of the complainant's behaviour as 'severe sexual harassment' was excessive, and found that the disciplinary panel had overly relied on the investigator's classification. The AO fundamentally disagreed with the CEO's statement that he felt that he was not in a position to critique the report, and held that there was a duty to independently assess the seriousness of the conduct.
Use of prior incident without formal investigation
The AO expressed concern that the disciplinary panel relied on the first incident to support its decision to dismiss, even though this decision had not been formally investigated. The AO considered that the retrieval of the earlier event to bolster the case for dismissal undermined the fairness of the process.
Failure to offer an appeal of the investigation
The Company’s internal policy allowed for appeals of investigation findings, yet this was not offered. The AO noted confusion between the disciplinary and sexual harassment policies and outdated references to structures no longer in place, which contributed to procedural unfairness.
Failure to sufficiently consider the employee's defence
The AO commented that the fact that the panel only deliberated for 20 minutes following the disciplinary hearing before deciding to dismiss suggested that there had been a pre-determined outcome. This was seen to be insufficient time to properly consider alternative sanctions or the proportionality of the dismissal.
Further, while the AO agreed that the complainant’s behaviour amounted to gross misconduct, they found that the disciplinary panel’s assertion that they had 'not an awful lot of choice in the matter' reflected a failure to properly consider the complainant’s defence.
The AO found that, while the Company's procedure had been flawed, the complainant contributed significantly to the dismissal and awarded the complainant compensation totally 30% of his losses in the two years following his dismissal, being EUR22,500.
Recommendations for employers
Employers should review their appeals policies and ensure processes proceed in line with same. Conflicting or outdated policies may undermine a disciplinary or investigation process.
What is done at the investigation stage is important. Employers should review the scope of the investigation to make sure that it only relates to the complaint currently before you. Disciplinary decision makers should engage with and critique investigation reports.
At disciplinary hearings, employers should actively engage with the defence offered by the employee and ensure that procedures are followed to avoid any perception of a pre-determined outcome or bias. Any concerns raised by the employee should be carefully considered.
Consider the proportionality of the sanction and alternatives to dismissal. This case illustrates the strict approach the Workplace Relations Commission will take in cases of dismissal, even where the behaviour may clearly constitute gross misconduct.
