The working environment has never been more challenging so it is important that Union activists are in a position to help and support colleagues who find themselves in trouble with their employer. Workplace investigations are unfortunately not uncommon occurrences and arise where it is alleged that an employee committed an act of serious misconduct e.g. theft, violence, intoxication at work, falsification of records etc.
It is said in a criminal trial that every man or woman is innocent until proven guilty beyond reasonable doubt. Employment investigations or “trials” need only satisfy the lower civil law threshold of the balance of probabilities. For example, an investigation may find, that an employee probably stole the cash as distinct from needing to find that the employee had stolen the cash beyond reasonable doubt. For an employer to come to this conclusion, and fairly dismiss the employee, they must have utilised fair procedures in the investigation otherwise they may be found to have acted unreasonably and become exposed to a claim of Unfair Dismissal.
The question of proportionality i.e. was the sanction too severe under the circumstances, might have to be addressed but this is a separate argument for the disciplinary stage.
Fair procedures are grounded in the concept of natural justice. The four fundamental factors for fairness in investigations are as follows:
1. Every employee must be made aware of the charges being made against him/her
The charges should be set out in writing including all relevant documentation e.g. any witness statements being relied upon. If these are not available then the union representative should be looking for them. If there is a written report available, the employee ought to receive a copy of that report in good time before the disciplinary hearing.
2. The right to be heard and to answer any charges made against the employee
The employee should be allowed to respond to the allegations. The employer must give fair value to the employee’s explanation or comments. It is a fundamental requirement of fairness that an accused employee is given a full and reasonable opportunity to examine all relevant witnesses.
3. Employees are entitled to representation
Union employees are entitled to representation by their Union representative under a Code of Practice in disciplinary matters (S.I. 146 of 2000). This is not a legally enforceable instrument but if the employer refuses this facility, the Tribunal may make an inference of unfair procedure in an Unfair Dismissal case.
4. There must be an impartial investigation
If there is a history of “bad blood” in the relationship between the accused employee and the investigator or if the investigator is connected to a witness, or previously had an involvement in the issue, then the affected employee may be able to argue that there is an element of bias. Likewise, if there is an appeal of a disciplinary decision to a manager, the person hearing the appeal should not have taken part in the investigation or the original disciplinary hearing.
An employee may consider an alternative civil law injunction against their employer if they believe they have been subject to unfair procedures in an investigation. This is a costly and risky route by way of the High Court and is not within the realm of trade union representation.
Trade unions are at an advantage by nature of operating at the coalface where representatives can put pressure on an employer to ensure fairness at the initial stages of an investigation. The convincing argument usually put to the employer is that if the investigation is found to be unfair, the likelihood is that any dismissal arising also will be deemed to be unfair thus leaving the employer exposed to a costly hearing and a probable compensatory sum, if not re-engagement/re-instatement, depending on the facts.
The above information is just a broad outline of the law and should not be used as a legal guide in this complex area. SIPTU provides a specialist individual representation and advice service for members who find themselves in trouble with their employer. The Workers Rights Centre can be contacted at 1890 747 881 or through the designated union official.