In the recent case of A Manager vs A Financial Services Company ADJ-00053684, the Adjudication Officer found that the procedures followed by the respondent Company, that had resulted in the dismissal of the Complainant were flawed and unfair.

The background to this case is that on 30^th January 2024, a male manager took a female colleague’s phone from her desk sent a sexually explicit WhatsApp message to her husband. The female colleague discovered this message, and the male manager admitted to sending the message and claimed it was meant to be a joke. The female colleague later contacted the CEO of the company and asked for a meeting to discuss what happened and subsequently made a formal written complaint against the male manager.

During the independent investigation, another female colleague reminded the CEO of a similar incident from 2022, when the same male manager had accessed her phone and posted two sexually offensive messages as if they were from her while she was on holiday. The male manager had admitted to posting these messages as a joke. The female colleague decided not to pursue this matter further at the time but informed the male manager that she did not accept what he had done was a joke.

On foot of the outcome of the investigation, the Complainant was dismissed, which was upheld on appeal.

The Adjudication Officer was critical of the procedures followed by the respondent during the investigation and disciplinary process with the following issues highlighted:

Firstly. the Adjudication Officer held that it was unnecessary to submit both the Complainant and the two female employees to an independent investigation, as the Complainant had owned up to both allegations immediately and it was therefore not necessary to do an investigation and a disciplinary meeting could have been progressed.

Whilst an independent and impartial investigation is almost always a good idea in the interest of fairness and impartiality, the starting point should be to consider if it is actually required to establish the facts of what is alleged.

Thereafter, the independent investigator should be aware of the specific purpose of the independent investigation and should not stray outside or go beyond the scope of the investigation and must strictly adhere to the Terms of Reference.

In this case, the Adjudication Officer found that it was not open to the independent investigator to reach a conclusion regarding the scale of the offence or the severity of the sexual harassment as this was a departure from the terms of reference of the investigation and this had a knock-on effect that led to the disciplinary panel relying on the determination of the independent investigator and failing to properly consider the Complainant’s defence.

While the Complainant was subsequently allowed to appeal against the disciplinary finding to dismiss him from his employment, he was not given the opportunity to first appeal the findings of the independent investigation, which was contrary to the provision in the Respondent Company’s own policy, which specifically allowed for an appeal against an investigation finding. At all times, the internal policy must be followed.

The Adjudication Officer determined that the failure to inform him about his right to appeal was a significant breach of procedural fairness.

Any complaint made against an employee that may involve a sanction, up to and including dismissal from their employment, must be considered carefully and with appropriate review. In this case, the Adjudication Officer was critical of the short amount of time the disciplinary panel took to consider the Complainant’s evidence at the disciplinary meeting. The Adjudication Officer indicated that a break of 20 minutes was not sufficient for the panel members to consider the Complainant’s explanations and criticised the failure of the panel to consider the possibility of a sanction short of dismissal or to consider the Complainant’s suggestion that he be demoted.

The Complainant was awarded €16,350, with his won contribution to the dismissal factored