14 Jun Conducting Fair Work Place Investigations & Disciplinary Hearings
This article will look at two cases that provide useful learning points on how to conduct fair investigations and disciplinary hearings in the workplace including the need to keep the investigation and disciplinary processes separate.
The first case (Ref UD 303/2014) concerns a bus driver employed by Bus Eireann who was dismissed after he collided with a parked vehicle in the Waterford Depot in November 2013 despite denying that he had done so deliberately and offering explanations for what had happened. The Investigating Manager conducted one meeting with the claimant on the 8th November 2013 which also served to be the disciplinary hearing resulting in the decision to dismiss. The allegations were not presented to the claimant in advance of this meeting and following his dismissal an appeal that was lodged was not upheld.
There were a number of clear procedural deficiencies identified by the EAT that contributed to the dismissal being held to be unfair and and an award of €25k being made as well as €3,600 for notice due. These included the fact that there were no minutes available of either the disciplinary or appeal meetings and also that the allegations were not put to the claimant in advance of the meeting of the 8th November. They also noted that separate investigation and disciplinary hearings were not held as per the Bus Eireann Policy and that the Investigating Manager had failed to conduct a fair and impartial investigation of the matter and had formed a view from the outset that the claimant had deliberately caused the collision.
In the second case involving a Boots Chemist Store (Ref AD 1564) the Labour Court upheld a Rights Commissioner Decision that an internal investigation which had resulted in an employee being demoted on November 1st 2014 was flawed and that the decision to demote was disproportionate to the incident that had occurred. In particular it was contended by the employee that the investigator had influenced the disciplinary process by giving an opinion that the employee had engaged in misconduct.
The Labour Court agreed that the process was prejudiced by a comment in the investigation stage in relation to the sanction and occurrence of misconduct and determined that whilst the Company had taken correct steps with regard to the investigation and subsequent appeals stage, the comment could have caused a level of bias and contributed to a lack of procedural fairness.The Court also determined that the sanction was totally excessive in respect of what was a practical joke between two people who knew each other outside of work and ordered that the employee be re-instated to their original position with effect from February 1st 2015.
These cases are just two examples of many that illustrate the absolute importance of clear and defined lines between the investigation and disciplinary stages at all times. Other essentials process matters include the need to always ensure that the allegations and relevant information are put to the employee in advance of any meeting and that notes of meetings are taken and issued at the time. As a side issue in the Bus Eireann case the employee decided not to view CCTV footage made available to him on the advice of his Union. It was however relevant to the decision making process in this case and in the event that CCTV is being relied on in any disciplinary hearing it should always be made available to the employee.