In this recent WRC case (ADJ-00006103) the complainant was dismissed from his job as a production operator in 2016 for two findings of misconduct, firstly for failure to adhere to safety protocols while operating equipment and secondly for sleeping at work.

During the WRC hearing, the complainant claimed that he was not afforded fair procedures during the investigation. Amongst other arguments, he claimed that the procedure was unfair as he was not given the opportunity to cross-examine his manager who claimed in a statement to have observed the complainant sleeping in a loading shovel at work. The complainant submitted that the date on which the line manager claimed to have observed him sleeping was incorrect. He also contended that he believed the line manager would have woken him if he had seen him sleeping and that the line manager would not have been in a position to see the complainant from where he claimed to be standing at the time. The complainant submitted that, in light of this, he should have been provided with the opportunity to cross-examine his line manager on his statement. The respondent did not provide for the cross-examination of the line manager on the basis that it was not company procedure to make witnesses available. The respondent argued that procedural fairness was complied with as the complainant had been provided with an opportunity to question his line manager through correspondence in that questions raised by the complainant were put to the line manager and the responses provided to the complainant.

In considering the issue of cross-examination the Adjudicator, while noting that the employer was required to apply fair procedures, not ‘perfect’ procedures, referred to the recent decisions in Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272 and in NM v Limerick and Clare Education and Training Board [2015] 308 JR.

Having regard to those decisions the Adjudicator found that the cross-examination of witnesses by correspondence did not amount to fair procedures, particularly as the complainant had requested to question the witness in person more than once. The Adjudicator noted that the complainant was not permitted to attend when his questions were put to the witness by the investigators, and quoted Justice Eager who said in Lyons: “It is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence”.

In her decision, the Adjudicator held that this failure to permit cross-examination resulted in a flawed investigation process and as such the second complaint relating to sleeping at work was not upheld. However, the Adjudicator said that this did not taint the entire disciplinary process and upheld the dismissal of the complainant in respect of the first complaint against him.

It is evident from this decision that the WRC is prepared to carefully examine workplace investigative and disciplinary processes in light of the decision in Lyons, and so employers should be mindful that these procedures are subject to considerable scrutiny at present.