A lack of fair procedures led to a recent High Court decision, wherein an applicant’s summons to a disciplinary meeting were set aside indefinitely.
Background
Mr. Lyons (applicant) had been employed as a deputy principal in a college under the control of LWETB (respondent). Mr. Lyons was informed that a colleague had filed a complaint of bullying against him in May 2015. This colleague had requested that a formal investigation be conducted in regards to this complaint.
The investigation was conducted in full compliance with the ‘Bullying Prevention Policy’ that had been in place. It consisted of four interviews; two with the complainant and two with Mr. Lyons. Statements were taken from three other witnesses and the investigator’s final report concluded that Mr. Lyons had repeatedly behaved inappropriately towards the complainant. It was therefore established that this behaviour could be regarded as undermining the complainant’s right to work, and was therefore in breach of anti-bullying policies.
Mr. Lyons was informed of the investigator’s report by letter on the 21st of April, 2016. He was told that it was to be adopted by LWETB, but that he had 15 days to appeal this decision. Mr. Lyons attempted to appeal to the WRC, but this was promptly rejected. Further correspondence with LWETB revealed that he was to attend a ‘stage four’ disciplinary hearing on the 15th of September 2016. The ETB disciplinary procedure allows for various sanctions to be imposed at ‘stage four’, one of which being dismissal.
It was at this stage that Mr. Lyons’ solicitor entered into correspondence with LWETB and their legal representatives. Summarily, the applicant objected to the findings of the investigation being relied upon in the disciplinary hearing. Mr. Lyons’ solicitor also made reference to various rights, and is cited here as reminding all parties of the applicant’s entitlement to fair procedures; ‘including challenging the evidence against him and in particular the right to cross-examine his accuser, his right to the presumption of innocence and his right to be advised in advance in writing of the specific allegations against him’.
It was then submitted by LWETB’s legal representative that in these circumstances it was justified to ‘refer the matter to the disciplinary procedure at an appropriate stage’. Mr. Lyons then applied to the High Court on the 7th of September seeking to review the decision to call a disciplinary meeting.
Decision
On the 5th of May 2017, the High Court concluded that the disciplinary hearing must be set aside. Eagar J. noted that the investigation only upheld four claims of It was also noted that the disciplinary process in place excluded legal representatives from attending on behalf of a client. Eagar J. stated that ‘where investigative processes can lead to dismissal, cross-examination is a vital safeguard to ensure fair procedure’.
Perhaps most importantly, it was clarified that the allegations of bullying could lead to serious repercussions if the investigation adopted fair procedures. It was decided that the flaws found had invalidated any potential disciplinary action. The disciplinary sanction was therefore set aside by the High Court.