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Investigation “Flawless” but Appeal Process and Lack of Medical Assessment Leads to Unfair Dismissal Finding
A Verger v A place of worship/heritage site ADJ-00027984 concerned an unfair dismissal case before the Workplace Relations Commission (“WRC”) under the Unfair Dismissals Acts 1977 to 2015 (the “Acts”).
Facts: The Complainant was employed by the Respondent, a place of worship and a heritage site, in a variety of roles from 1st June 2013 to 18th December 2019. When his employment was terminated by the Respondent, he held the position of Verger. The Respondent submitted to the WRC that the Complainant was dismissed for gross misconduct and misconduct for attending work 45 minutes late, failing to report his lateness in line with the Respondent’s absence reporting procedure, and attending work under the influence of alcohol. He was already on a Final Written Warning at the time. The decision contains a detailed chronology of events, including prior incidents in respect of which the Respondent told the WRC it exercised “considerable forbearance”.
There was a further incident on 29th August 2019 where the Complainant arrived at work at approximately 10.20am, when he was due to attend work at 9.30am. The Respondent submitted that the Complainant failed to follow the absentee reporting procedure and his appearance was noted to be disheveled. His behaviour appeared unusual and two members of staff noticed a strong smell of alcohol. The Complainant argued he was not under the influence of alcohol, but that he had been out the night before. In accordance with the Respondent’s intoxication policy, he was sent home. The Complainant had annual leave booked in following this incident and upon his return he was suspended pending an investigation. The Respondent appointed an external third party to investigate the allegations and contended that the Complainant was given an opportunity to comment on witnesses’ interviews and pose questions. The investigation ultimately upheld the allegations. Following the investigation, the Complainant was invited to a disciplinary hearing on 16th December 2019. The sanction of dismissal was imposed following this hearing and this was communicated to the Complainant, who was afforded a right of appeal. The Complainant exercised this right and brought a trade union official to the appeal hearing. However, at the hearing he was advised that his SIPTU union official could not act or make representations on his behalf. The SIPTU official requested that it be noted in the minutes that the Complainant was not afforded his rights to fair procedures. The Complainant’s dismissal was upheld as the Complainant had not provided “sufficient grounds nor new information or sufficient mitigating evidence which would allow the sanction to be overturned.”
The Respondent argued the decision to dismiss the Complainant was entirely fair in circumstances where the Complainant was on a Final Written Warning and there were two operative grounds for dismissal:
Link - https://www.workplacerelations.ie/en/cases/2023/october/adj-00027984.html Authors – Tara Kelly, Jenny Wakely and Anne O’Connell
- The Complainant’s lateness and failure to report this in accordance with policy
- The Complainant’s breach of the intoxication policy
- Did the Respondent apply fair procedures in addressing the allegations with the Complainant?
- Was the sanction imposed by the Respondent within the band of reasonable sanctions?
Link - https://www.workplacerelations.ie/en/cases/2023/october/adj-00027984.html Authors – Tara Kelly, Jenny Wakely and Anne O’Connell