Workplace Relations Commission confirms the importance of procedural fairness at all stages of a disciplinary investigation

At a glance

• The Workplace Relations Commission (WRC) has considered a case in which the Complainant was denied the opportunity to cross-examine all of the evidence raised in their disciplinary hearing.
• In this case, the Adjudication Officer held that while they found the dismissal to be substantively fair, it failed to meet the grounds of procedural fairness due to the fact that the Complainant had not been permitted to engage with all the evidence.
• The Complainant was awarded EUR3,584.00 in compensation.

Investigation process

The Respondent had concerns that the Complainant was not working the hours that they were recording on their time sheets. The Respondent began an investigation into the Complainant and engaged a third party to assist resulting in the third party producing an report and photographs.  

Due to the Complainant’s sick leave, they were unable to participate in the entire investigation process. Despite this, the Respondent's investigation was completed and the process moved to a disciplinary hearing, which concluded that there had been a breach of the Company’s Disciplinary Policy constituting gross misconduct. This conclusion was based in part on information provided by the third party following the private investigation. 

Disciplinary hearing

A disciplinary hearing ensued that concluded in the dismissal of the Complainant. 

The Complainant argued that the disciplinary investigation relied on photographs and a report that had not been adequately scrutinised. Despite the Complainant’s request to cross-examine the third party who compiled the report, particularly in light of disputes over the context of the photographs, that individual was not asked to attend the disciplinary hearing. 

The Complainant further contended that the investigator failed to seek any corroborating evidence and did not provide an opportunity to challenge or cross-examine either the report or its author. As a result, the Complainant submitted that these procedural shortcomings amounted to a denial of fair procedures.

Adjudication outcome

The Adjudication Officer found the dismissal to be substantively fair but procedurally flawed. The failure to follow fair procedures, particularly in relation to the handling of evidence and the denial of cross-examination, rendered the dismissal unfair. As a result, the Complainant was awarded four weeks pay (EUR3,584.00) in compensation, taking into account his contribution to his dismissal and his failure to mitigate their losses.

The Adjudication Officer found that the investigation had been hindered hampered by the Complainant’s repeated failure to attend scheduled meetings, which reasonably led the Respondent to conclude the process after a prolonged delay. However, they emphasised that the Respondent was still obliged to conduct a fair and balanced disciplinary hearing. 

In particular, the Adjudication Officer held that the Respondent should have facilitated the attendance of the third-party investigator. While acknowledging the Respondent’s right to proceed in light of the Complainant’s lack of engagement, the Adjudication Officer concluded that the failure to conduct a fair and independent assessment of the evidence, including challenging the investigation material, undermined the fairness of the hearing and breached procedural standards.

Implications

The WRC’s decision in this case highlights the importance of procedural fairness. 

Procedural fairness Is non-negotiable

Even where a dismissal is substantively justified, failure to follow fair procedures, particularly in relation to how evidence is handled, can render the dismissal unfair.   Even where an employee fails to engage with the investigation process due to illness or absence, this case highlights how employers are still required to uphold procedural fairness throughout this process. 

Right to cross-examine evidence

This case reinforces that employees should be given a meaningful opportunity to challenge the evidence against them, which may include the right to cross-examine witnesses or third parties whose input forms part of the investigation. Direct cross examination may not be appropriate in most cases, however, some form should be allowed where requested and we strongly recommend seeking legal advice in such cases. Where surveillance is involved in an investigation or disciplinary decision, employers must ensure that such evidence is retained, and open to challenge.