21 Jul Workplace Investigation Not Up To Standard

This recent WRC decision highlighted the importance of a robust investigation stage that is not predetermined, when a betting shop manager from a retail and online gaming operation, was awarded almost €11k after being unfairly dismissed due to a number of procedural flaws in both the investigation and disciplinary stages. (Ref ADJ-00026144)

The Complainant was a Manager in a betting shop, who was dismissed for misappropriation of 112 bets amounting to €2,100, which he strongly denied and claimed that he had been the victim of a seriously flawed investigation.

On foot of some concerns by the Company’s Security Department about a number of betting transactions, a paper trail review had been conducted of bets that had been under staked on the shop’s EPOS System. These were then brought to the attention of the Complainant, with only an hours’ notice to attend an enquiry meeting, after which the Complainant was suspended and the transactions under review became the subject of a disciplinary process.

No interviews with staff or review of CCTV footage took place, and the Complainant was dismissed by the Regional Manager following the disciplinary hearing, which he then unsuccessfully appealed, following a hearing a number of months later after the Complainant received the CCTV footage he had requested.

The Complainant submitted that he had participated in the initial meeting without the benefit of CCTV footage and furthermore that the Respondent then did not rely on the footage in its investigation which caused grave prejudice to the Complainant by only relying on the paper trail.

The Complainant had subsequently established that by cross referencing the CCTV to the betting slips, it clearly demonstrated that he was not the person who had staked and translated all the bets on 42 separate occasions, and asserted if he had this footage available to him at the enquiry meeting, the cross referencing exercise could have been carried out before he was dismissed.

It was further submitted by the Complainant that there was no explanation for a four month delay in carrying out the initial investigation and the failure to interview other relevant staff, as well as the fact that the person from HR who heard the appeal was not impartial, as she had already been involved in the decision to suspend the Complainant, which was also contrary to the Appeals Policy in their own hand book.

The Respondent outlined that they had conducted investigation and disciplinary processes that respected the rights of the Complainant and that on the balance of probabilities, the sanction of dismissal was proportionate and reasonable in the circumstances.

Unfair Dismissal

The Adjudication Officer deemed that the dismissal was unfair as the investigation and disciplinary processes had been tainted with procedural unfairness, and the Respondent from the outset had made up their mind and decided that the Complainant was at fault. Compensation of €10,980 in relation to the 18 week period that the Complainant was unemployed was awarded.

The following specific problems with the procedures applied were highlighted by the Adjudication Officer;

• A four month delay in initiating the investigation;
• Only an hours notice was given to the Complainant to attend the investigation meeting;
• Other staff members were not interviewed to ensure a complete fact finding exercise took place;
• The Complainant was not given access to relevant CCTV footage at either the investigation or disciplinary stage;
• The credibility of the paper exercise that was relied on to dismiss, was undermined following the cross referencing with the CCTV footage that did not align the Complainant with all the transactions under review;
• No independent appeal took place as per the Employee Handbook.

Once again, some useful reminders from this case in respect of conducting investigations and disciplinary processes, and employers must firstly and critically ensure that any investigation outcomes being relied on can stand up to scrutiny and that all necessary input has been reviewed and shared with the employee in advance of any decision being made.

In addition, the various stages involved in a dismissal process must be kept separate and the appeal stage should stand alone as fully independent and impartial.

If you need further information or support on conducting workplace investigations, email Carmel Murphy or telephone (071) 9642748 to make an appointment.