27 Nov Re-engagement Ordered By Labour Court After Flawed Investigation And Disciplinary Process.

The determination published earlier this year in the SSP Ireland v Albert Fordjour provides some useful lessons for employers on the necessity of adopting fair procedures at all stages of the investigation and disciplinary processes and in particular around the interviewing of proposed witnesses (Ref UDD 1758).

Mr Fordjour was a duty manager in Dublin Airport who was dismissed over an alleged kiss with a junior female colleague in a lift. Mr Fordjour said he had only tried to hug his colleague and disputed that he had tried to kiss her, and said that he had two witnesses available who could confirm that he was more “friendly” with his colleague, and that this relationship provided a context to the hug. The witnesses were not interviewed during the investigation or disciplinary stages of the process. The employee who made the complaint in writing was also not interviewed at any stage and her written statement only was relied on. Furthermore, Mr Fordjour was also not given any advance notice of the intended nature of the first investigation meeting he was asked to attend.

Following an appeal by the Company of the Adjudication Officer’s decision that the dismissal was flawed from a procedural perspective and that Mr Fordjour should be re-instated, the Labour Court agreed that the dismissal was flawed, but said that Mr Fordjour should be re-engaged at a level below his former grade on a final warning, as he had contributed significantly to the decision to dismiss, due to his own behaviuour. The Labour Court said that whilst it could not be proven from CCTV that he had absolutely tried to kiss his colleague, his behaviour was an abuse of his power and an infringement of an employee’s right to bodily integrity.

This case again demonstrates that whilst there appears to have been a reasonable and substantive ground on which to dismiss the employee, the procedural deficiencies were such as to render the dismissal unfair and resulted in Mr Fordjour getting his job back. The Labour Court said that in the absence of the two proposed witnesses being interviewed and the original complainant being interviewed at any stage of the process, it was a flawed procedure and the persons involved in fact finding or making decisions at the investigation, disciplinary and appeal stages were not in a position to determine the truth of the defence that Mr Fordjour was asserting or the allegations against him.

Lessons

It is therefore worth remembering that all parties to a complaint should be interviewed as opposed to relying on a written complaint, and that proposed witnesses should be interviewed unless there is a very good reliable reason for not doing so. A failure to fully investigate the defence put forward by an employee to allegations being made against them will result in the process being procedurally flawed, with the potential not just for a monetary award but reinstatement or re-engagement.

If you would like more information about the impartial and independent workplace investigation services offered by HR Solutions, email carmel@hrsolutions.ie or Telephone (071) 9642748.