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WRC upholds dismissal despite flaw in procedure

The recent decision of Adjudicator Michael Hayes will give some comfort to employers. The Complainant was employed as a painter from November 2005 until his dismissal for gross misconduct on 1st May 2015. The Complainant submitted that his dismissal was unfair on both substantive and procedural grounds. The Respondent’s HR department received a report on 10th March 2015 concerning three incidents including physical altercations which had occurred on the previous day between the complainant and a colleague. The Respondent submitted that a thorough and fair process was followed and the Complainants right to natural justice was ascertained.

The Complainant submitted that the process had been “sullied to the extent that it was rendered the dismissal fatally flawed” and gave a number of examples. Firstly, the chargehands statement had not been given to the Complainant in advance of the investigation meeting, secondly, the statement was not referred to during the meeting and thirdly, he was only made aware that his implicated colleague had said he had been punched on the day of his disciplinary hearing during his own disciplinary hearing. The Complainant further submitted that he was not made aware in the invitation to the investigation meeting that he himself was to be subject to the investigation meeting nor was he notified of his right to have a trade union official accompany him.

The Adjudicator was satisfied that the investigation process was fair and that its terms of reference were to investigate a report of an altercation on 9th March 2015 in the complainant’s department. The invitation to the hearing refers to the complainant explaining his case, which the adjudicator was satisfied confirmed that the Complainant was implicated. Mr Hayes did raise concern over the fact that the complainant was not provided with the chargehands statement which grounded the investigation in advance of the hearing, however, this did not render the process fatally flawed in the circumstances and therefore the dismissal was fair.

31st July 2018

Anne O’Connell
Solicitors
1-3 Burton Hall Road
Sandyford
Dublin 18
www.aocsolicitors.ie

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