To date we have looked at some of the key principles in conducting a fair workplace investigation and we now turn our attention to the consequences of conducting an unfair workplace investigation. As outlined below, a number of costly lessons were learned and whilst some of the mistakes seem fundamental, take note!
In the case of O’Sullivan v Mercy Hospital Cork Limited (unreported, Clarke J., June 3, 2005), the plaintiff sought a variety of interlocutory orders to restrain the defendants from progressing with enquiries and procedures relating to her employment which she claimed were unlawful. The court held that the investigators’ report could not to be relied upon by the employer and Justice Clarke noted “I am therefore satisfied that the plaintiff has made out a prima facie case that the terms of reference of the O’Brien inquiry are such as to render that enquiry tainted by what, on the basis of evidence before me at this stage, I must conclude was a legally flawed enquiry conducted by Mr Brown”. In this case a new investigation had to be commenced and the findings of the original report ignored which was certainly a costly error for the employer.
It is worth repeating the comments of Budd J in the High Court in the case of Cassidy v Shannon Castle Banquets where he noted
“When an employer is confronted with an allegation of misconduct against an employee, then it seems before a decision is made to dismiss, the person accused must be informed clearly of that with which he is charged. He must then get a fair hearing. This does not necessarily mean such a hearing as he would get in a court of law but it does mean that he should be treated fairly according to the ordinary reasonable standards of fair play. He must be given a fair opportunity of refuting the charges and implicit in this is that he must be told reasonably full particulars of the charges”.
This case clearly demonstrates the importance of the principles of “Nemo ieudex in causa sua” or no one should be a judge in their own case and “Audi alteram partem” or hear the alternative party too.
In Atkinson v Carty (unreported, Dublin Circuit Court, May 6, 2004), the plaintiff succeeded in an action before the Circuit Court for sexual harassment. After commencing employment, the plaintiff began to experience problems with an independent contractor who provided accountancy services to the defendant. Upon receiving the complaint the defendant agreed to carry out an independent investigation to examine the allegations however it was then decided that the managing director would carry out the investigation himself. The plaintiff claimed that the investigation was unfair in that the managing director was carrying out an investigation into allegations made against a close friend. In addition the plaintiff was not afforded full participation in the investigation.
Delahunt J found for the plaintiff arising from the defendants breach of statutory and contractual duties and noted that the purported investigation carried out by the defendant was so flawed that it significantly exacerbated the problems for the plaintiff. The court awarded the plaintiff damages in the sum of €137,000 less a finding of contributory negligence measured at 25% as the plaintiff had been aware for a two year period prior to making a complaint that she was being sexually harassed.
Separately some of our recent queries from our clients have included:
- What can we do if an employee makes a complaint but the other party refuses to take part in the investigation process?
- We suspect that two employees have “orchestrated” a claim as their complaints seem identical including the wording used and the dates/times of alleged events. What can we do?
We will deal separately with these queries in our next workplace investigation blog post and again we welcome any comments or queries on challenges you have faced in the choppy waters of workplace investigations!