WRC Orders Reinstatement of Employee who was Unfairly Dismissed

In Nkemka Patrick Okachi v Sodexo Ireland Limited (ADJ-00045306), the Workplace Relations Commission (“WRC”) ordered reinstatement of the Complainant following a finding that he had been unfairly dismissed.

This case is noteworthy in circumstances where the exceptional nature of the remedy of reinstatement was emphasised by the Supreme Court last year in the case of An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38. See our previous article on that Supreme Court Judgement here.

Facts: In the instant case, the Complainant’s evidence was that he commenced work with the Respondent on 5 May 2014 and was dismissed on 17 February 2023 from his position as a Cleaning Supervisor. The Complainant contended that he had been unfairly dismissed by the Respondent after being accused of sexual harassment by a female colleague. The female colleague was not an employee of the Respondent; she was an employee of Respondent’s client. The Complainant’s version of events was that he had an interaction with this female colleague in the gym where they were both working. The Complainant described the conversation as jovial and upbeat. He denied there was anything of a sexual nature. He said that he complimented her, and she gave him a hug at the end of the conversation.

It was the Complainant’s evidence that when he next attended work his manager told him that there had been a complaint made against him. The Complainant submitted that he requested the CCTV footage of the interaction but was told the evidence was “not based on camera footage”. The Complainant was suspended from work and he was sent a disciplinary invite letter.

The Respondent provided evidence of investigation, disciplinary and appeals processes it followed in respect of the allegation against the Complainant.

Decision: The Adjudicating Officer, Úna Glazier-Farmer, found that the Respondent had not followed fair procedures or its own policies in handling the complaint of sexual harassment. For instance:

• The Adjudicator found that given the nature of the Respondent’s business, which involves access to other work locations, the suspension appeared to be a knee-jerk reaction and therefore unreasonable. Furthermore, there was no request by the female colleague not to work with the Complainant. There was also a timing issue around the decision to suspend as it appears to have been taken before the written details of the complaint were ever received by the Respondent from its client.  
• The Adjudicator did not accept the Respondent’s submission that its Dignity at Work policy did not apply when the accusation originates from a client rather than an employee.
• The initial complaint came in the form of a list of points “HR agreed” with the female colleague. This email did not name the Complainant, nor did it make any complaint of physical contact. The Adjudicator remarked that it was “extraordinary” given how matters unfolded for the Complainant that the Respondent had been advised the female colleague “did not want to make a big deal” of the interaction.
• Despite the complaint email not mentioning physical contact, a statement from a manager who reviewed the CCTV footage noted the Complainant “put his arm around her”. The Complainant consistently denied this maintaining he placed a hand on her shoulder. Despite this, each stage of the disciplinary process relied on the inappropriateness of this conduct which ultimately led to the Complainant’s dismissal. The Adjudicator noted that an email from a receptionist also made no reference to physical contact between the parties and a personal trainer identified by the receptionist as having witnessed the incident was not interviewed.
• The Complainant consistently requested access to the CCTV footage, which was denied. While the Respondent claimed the footage was not relied upon, the evidence suggests otherwise.
• The Adjudicator questioned the objective fairness of the investigation and found the disciplinary process lacked objectivity and independence.
• The Adjudicator noted that no cross examination of witnesses was allowed despite the Respondent’s own Disciplinary Procedure providing “Employees may question witnesses (via the meeting/hearing manager where appropriate)”.

The Adjudicator determined that the Respondent’s handling of the case fell significantly short of the principles of natural justice and commented that:

“While the standard for workplace investigation is not perfection, it does go beyond merely populating template documents without any objective independent thought and consideration for the Complainant’s version of events. This is even more significant when it comes to complaints, if founded, can have a lasting impact on a party’s reputation both in the workplace and beyond.”

The Adjudicator commented that the investigation was neither fair nor independent, and the decision to dismiss the Complainant was based on flawed procedures and hearsay evidence. The Adjudicator found that this failure has not only resulted in the loss of the Complainant’s employment of 8 years but has also damaged his reputation.

The Adjudicator found the sanction of dismissal was entirely disproportionate.

Redress –

The Adjudicator awarded reinstatement and set out the reasoning for doing so as follows:

“Having carefully reviewed the specific circumstances of this complaint, in which the Complainant was unfairly dismissed, subsequently secured short-term work from June 2023 until January 2024, and now finds himself unemployed again, together with the nature of the Complainant’s business, where the complaint did not originate from a fellow employee of the Respondent or someone with whom he worked directly, and the potential for alternative work sites within his county, I conclude that the most appropriate redress is reinstatement by the Respondent on the same terms and conditions as those held prior to his unfair dismissal.”

Takeaway for Employers: Employers should ensure that when they are notified of complaints, that they handle them according to their employment policies and in line with fair procedures. This should not be treated as a simple ‘box-ticking’ exercise.

It should be noted that while reinstatement was deemed the most appropriate means of redress for the Complainant in this case, the Supreme Court has made it clear that the remedy of reinstatement should only be awarded in exceptional cases.

Link – https://www.workplacerelations.ie/en/cases/2025/january/adj-00045306.html

Authors – Laura Killelea & Lia Berkery

5^th March 2025

Anne O’Connell

Solicitors

19-22 Lower Baggot Street

Dublin 2.

www.aocsolicitors.ie

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