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High Court finds that Director of Employer Company’s Investigation of Complaint against Employee involving the Director, contravenes the Rules of Natural Justice

By: Patrick Mullins | Posted on: 25 Oct 2018

High Court finds that Director of Employer Company’s Investigation of Complaint against Employee involving the Director, contravenes the Rules of Natural Justice

 

High Court finds that Director of Employer Company’s Investigation of Complaint against Employee involving the Director, contravenes the Rules of Natural Justice

 

By Patrick Mullins 

 

It is often said that employees, in the course of a disciplinary investigation, are entitled to the rules of natural justice and to due process. A recent judgment by Mr. Justice Bernard Barton, delivered on the 16th of July 2018, dealt with a circumstance in which these rules were not applied to a disciplinary investigation, of an allegation of gross misconduct, against an employee, which ultimately led to the employee being dismissed.

 

 

The proceedings were quite protracted. The employer was Turbrook Limited, trading as Castle Durrow County House Hotel. The employee was Eugene Young. The Employment Appeals Tribunal had previously made a finding of unfair dismissal, against the employer. This was subsequently appealed to the Circuit Court by the employer.

 

 

The finding of unfair dismissal was upheld by the Circuit Court, on the 28th of July 2016. The employer then appealed this decision to the High Court.

 

Mr. Peter Stokes is a director of the employer company and managing director. Mr. Young was employed as a general handyman, since the 14th of February 2000. Mr. Young was dismissed from his employment, by letter of the 22nd of August 2013. He was dismissed on the basis of gross misconduct, arising from Mr. Young’s alleged aggressive behaviour and abuse, towards Mr. Stokes, and Ms. Shairp, the financial controller of the hotel.

 

 

Mr. Young had a contract of employment and there was also a handbook in operation. The employer also had written disciplinary, grievance and dignity at work policies. The circumstances involved an altercation, which occurred on the 4th of June 2013. Mr. Young alleged that he had been punched by Mr. Stokes and demanded an apology. Mr. Stokes said that Mr. Young pushed him with a beer keg, which he was carrying, back towards a low wall.

 

 

Mr. Young was subsequently sent home, to cool down. Mr. Young was then suspended, pending an investigation. Mr. Young was invited to a disciplinary meeting, which was to be held by Mr. Stokes and Ms. Shairp, who had also accused Mr. Young of abusive behaviour, towards her.

 

 

Mr. Young had written to Mr. Stokes, referring to the physical assault, which he says was occasioned upon him.

 

 

Having heard evidence from all sides, the High Court held that Mr. Young had been subjected to verbal and physical abuse, which was neither justified nor excused.

 

 

It was argued on behalf of the employer, that the managing director, Mr. Stokes, was entitled to investigate, hear and determine, not only the complaint by Ms. Shairp, but also his own complaint, against Mr. Young.

 

 

Mr. Young’s argument was that in the particular circumstances of the case, the managing director should not have involved himself, in conducting the investigation, making a determination and imposing a disciplinary sanction, of foot of his own complaint, particularly in circumstances where he, himself, was the subject-matter of a complaint of assault, by Mr. Young.

 

 

Mr. Justice Barton affirmed the previous decision in Mooney v. An Post [1998] 4 IR 288. Having examined the policies of the employer, Barton J. held that:

 

 

the application of the rules of natural and constitutional justice, which include the entitlement of an employee to the benefit of fair procedures, to be informed of the charge or complaint against him and to be given an opportunity to respond and make submissions, are broadly incorporated into the Appellant’s grievance, disciplinary and dignity policies.

 

 

Mr. Justice Barton further went on to hold that:

 

 

these policies commit the Appellant at all times to uphold the employee’s right to natural justice and fair procedures, to apply same fairly and consistently to all and where it arises to dismiss only after an ‘independent’, ‘thorough’, ‘impartial’ and ‘objective’ investigation has been completed.

 

 

 

Mr. Justice Barton referred to the judgment of Keane J. in the Mooney decision and quoted from Keane J., where the Court stated:

 

 

Where, however, natural justice requires a hearing by an impartial tribunal before an employee is dismissed, the presence on the Tribunal of someone who has hitherto been in a prosecuting role may be a violation of the principle. 

 

 

Mr. Justice Barton went onto hold that if there was ever a case where natural justice required a call for the adoption of such an approach, that this was one such. The High Court held that it was hardly surprising that Mr. Young objected to the employer’s investigative and disciplinary process being conducted by the person, who the employee considered had subjected him to verbal and physical abuse.

 

The employee had suggested a third party be involved, for the purposes of trying to reach a resolution. The employer had indicated an agreement to such a proposal, subject to certain conditions being met, one of which involved the employee making a financial contribution, towards the cost of the investigation. However, at the material time, the employee was suspended, without pay, for a period of one month, and was not in a position, financially, to do so.

 

 

The Court held that the employer was determined to remain in control of the process and the cost involved, and held that if there had been a genuine commitment, to reaching an amicable solution, the waiver of the fiscal contribution, would have been a very small price to pay.  

 

 

In any event, the Respondent did not attend the investigation and disciplinary meeting, which proceeded in his absence. On the day previous to the disciplinary meeting, the solicitors for Mr. Young made it clear to the employers, that the proposed meeting constituted a failure to conduct the investigation process, with due regard to the particular circumstances of the case, and meant that Mr. Young would not be in attendance at the meeting. The meeting proceeded, and a decision was taken to dismiss Mr. Young.

 

 

Mr. Justice Barton went onto find that:

 

 

the investigative/disciplinary meeting which resulted in the dismissal of the Respondent was fundamentally flawed and contrary to the principles of natural justice, to which the Appellant expressly committed itself by the policies which it had adopted, conducted as it was by the Appellant’s managing director into his own complaint and that of Ms. Shairp against a background where the behaviour giving rise to the complaints, on foot of which the Respondent was found to be guilty of gross misconduct, arose directly as a consequence of verbal and physical abuse to which he had been subjected by the managing director.

 

 

On the evidence as to what transpired at the meeting, I am satisfied and the Court finds that the investigation and ultimate decision-making process involved was neither independent, thorough, impartial nor objective, as it had to be if it were to comply with the policies which the Appellant had adopted.

 

 

The High Court, therefore, upheld the decision of the Employment Appeals Tribunal and the Circuit Court, to the effect that Mr. Young had been unfairly dismissed. This decision ultimately leads to two particular conclusions, as follows:

 

 

  1. That where employers have written policies and procedures, in relation to matters such as grievance, disciplinary and dignity at work, these should be followed to the letter; and
  2. Careful consideration ought to be given to a Complainant member of management, investigating and determining that very same person’s complaint against a member of staff.

As the case involved the managing director, it is clear that a third-party, external investigator ought to have been involved ,in order to provide for the principles of natural justice, and due process.

 

 

 

 

Patrick Mullins

 

BDM Boylan Solicitors

 

Clarkes Bridge House

 

Hanover Street

 

Cork City

 

pmullins@bdmboylan.ie

 

www.bdmboylan.ie

 

021 431 3333