05 Jan Investigation Procedures

The Complainant was dismissed on a summary basis for matters relating to an aggressive attitude and behaviour, including becoming agitated when reprimanded about her work, and kicking her cleaning trolley with such force that it caused damage to the door of a lift as well as engaging in a threatening and loud manner towards her Supervisor. The Complainant admitted her behaviour and did not appeal the dismissal.

The Complainant gave the Court examples of not being treated well by her employer previously when she developed knee pain due to being on her feet all day, as well as not being afforded information about bereavement leave on the death of her father. The Complainant said unreasonable demands were also placed on her with regard to her daily tasks and this had led to her becoming ill tempered and in overall terms she felt undervalued.

The Complainant highlighted that it had been unfair that the person who suspended her, had also investigated matters and formally suggested dismissal in the investigation report.

The Complainant gave details of the financial loss she suffered before she found another job after 4 months, but which she was then let go from 5 months later, due a slowdown in business.

The Respondent outlined that they had substantial justification for the dismissal but did accept as per the Adjudication Officer’s decision that there were some procedural deficiencies in the process, which they believed had already been compensated for in the Adjudication Officer’s decision and award and did not impact on the outcome.

The Court noted that although the facts leading to the dismissal were not disputed, and that the Complainant had acknowledged her poor behaviour, they did not agree with the Respondent’s position that the process failures did not impact on the outcome and determined that the following procedural flaws were not trivial or inconsequential, rendering the dismissal unfair;

• Failure to advise the Complainant of her right to representation during the investigation;
• The Investigator considered his own statement as part of the investigation;
• The Investigator went beyond the scope of the original matters under investigation;
• The Investigator recommended a disciplinary sanction; and
• A lesser sanction to that of dismissal was not considered.

The Court considered that €5,000 was the appropriate level of compensation in light of the actual losses incurred by the Complainant, whilst noting her contribution to her dismissal through unacceptable behaviour and that she did not avail of the internal appeal process available to her. (UDD2167 Apleona HSG Ltd & Amanda Cowan)

Lessons

Apart from the very basic failing of not allowing representation during the investigation stage, the failure to maintain the required separation between the investigation and disciplinary processes is noteworthy, and serves an useful reminder of the absolute necessity to keep these stages distinct and separate in order to afford employees fair and due process in a potential dismissal situation, even when the misconduct involved may justify dismissal.