- Posted by Bernadette
- On August 7, 2011
- Employment, Natural Justice
UD 1564/09 O’Kelly v St. John of God, Stillorgan
This case relates to a claim of unfair dismissal where the claimant alleged constructive dismissal. She lodged a complaint of sexual assault against a co-worker with her employer on 3 January 2006. An investigation was begun and her statement to the investigation completed on 19 April 2006. In August the claimant was informed of a request to cross-examine her but she was unable to participate in the process at that time due to sick leave. The employer’s director of HR wrote to the claimant again on 10 October 2006, 27 November 2006 and 21 December 2006 and the complainant confirmed that she was unable to participate. In the December letter she was informed that the crossexamination would be complete by mid January and a deadline for her response was set for 5 January 2007. By letter dated 5 January 2007 the claimant confirmed her availability for cross-examination. On 10 January 2007 the Director of HR wrote to the claimant giving a summary of the investigation process to date including the fact that 9 witnesses had been interviewed. This was the first time the claimant was made aware of this and she had not been given a copy of the statements. There was no further contact with the claimant until, in late March 2007, the final report of the investigation was issued. The accused person had not ultimately had the opportunity to cross-examine the claimant. The claimant’s union representative raised objections to the manner in which the report was finalised and argued that it was flawed.
In respect of the constructive dismissal claim, the EAT took account of the employer’s response which was considered reasonable. The claimant had not exhausted all internal remedies in that she could have appealed the result of the investigation. This approach, the need to exhaust all internal procedures, is one also used by the Labour Court.
The internal investigation was carried out by a senior physiotherapist and former Director of HR. In its Determination the Tribunal referred to the investigation as follows: “The Tribunal does not find fault with the manner in which the investigation was conducted. All the appropriate witnesses were contacted, statements were assessed and a decision was reached. The Tribunal cannot criticise the investigatory team’s need to balance the rights of the accused and the rights of the victim.”
The difficulty with this is that it ignores the fact that the investigators were in possession of information that at least one of the parties, the claimant, was unaware of. While, of course, it is unknown whether any of the information provided by the 9 witnesses was used by the investigators in reaching their decision the fact that the complainant was unaware of the information meant that she could not assess its impact and had no opportunity to respond. Perhaps if she had she could have addressed any issues arising, discounted them or explained them. In any event she was not provided with the opportunity and this, in my view breaches natural justice rule audi alteram partem. In addition, had the circumstances been different, the failure to seek comments from the accused person on those statements could also have had a detrimental effect on that person’s ability to defend themselves and would have breached the same principle. It is unfortunate that the EAT included its comments that it could not fault the investigation since this might create the impression that this was a finding of fact. It is the practice of Beo Solutions to always seek comments from parties in respect of information provided by witnesses, with special emphasis on any new information presented, before closing the investigation. An insightful treatment of natural justice can be found in Delaney v Central Bank of Ireland,  IEHC 212.
The EAT also mentioned in the passage above the need to balance the rights of the parties and this is very important for investigators. It is often the issue that will motivate an investigator to move on in situations where persons do not co-operate with the investigation. In this case, however, the delay of the response dated 5 January 2007 does not appear sufficient reason to decline to cross-examine the claimant. The claimant is not cross-examined and this would appear to cut across the rights of the accused person. The complainant is never told that cross-examination is no longer considered necessary, or why, and the next she knows is that the final decision/report is issued. At the very least this process is lacking in transparency and one wonders if a decision had not already been reached. Arguably, there were flaws in the process that impacted on both parties which does not render the process acceptable. Of course, it is noted that the hearing took seven days and some information relevant to these issues may have been omitted from the Determination.
A request to cross-examine does not often crop up in commentaries relating to workplace investigations although it is often an issue, along with representation, in respect of disciplinary processes where the impact of a finding against the accused would be serious. See Burns & Hartigan v The Governor of Castlerea Prison  IESC 33. In this case the EAT referred to it as follows: “The Claimant was asked to make herself available for cross-examination on foot of the statement of complaint she had made. Given the seriousness of the allegation this request is not seen by the Tribunal as being unreasonable.”
Overall, the decision is in line with the general approach that where internal procedures have not been exhausted constructive dismissal is less likely to be upheld. However, if the comments relating to the investigation were removed, the decision would still be coherent in respect of the constructive dismissal.