Resolving Disputed Facts: Case Studies from Workplace Relations Commission
More often than not, cases brought before the Workplace Relations Commission, concern a disagreement on facts. Two parties, present their different versions, of the same set of facts. In such circumstances, the adjudicator must determine which set of facts is more likely the truth of what occurred between the parties. In coming to its determination, the adjudicator will examine the oral and documentary evidence before it.
The following cases serve as instructive examples of scenarios where the facts were in dispute, and the adjudicator used the evidence presented by both parties to come to a determination.
The employee, a driver, claimed that after five years of employment, he was unfairly dismissed by his former employer before the WRC. The employer contested the claim, arguing that the complainant had been dismissed for gross misconduct.
In an unfair dismissal claim the onus rests on the employer to prove the dismissal was not unfair. In support of its position, the employer called its General Manager (GM) to give sworn oral, evidence. The GM gave evidence that on the 13 September 2020, the employee used a racial slur towards another employee, and also refused to allow them on the shuttle bus the employee was driving. The GM, gave evidence that the day after the incident, he convened a meeting, at which he claimed the employee admitted to using the racial slur, resulting in their dismissal. The employer also presented written statements from two other drivers, in support of its position., However, neither driver gave sworn oral testimony in support of each statement. Further to this, the statements submitted, had the incorrect date of “September 2022” rather than “September 2020”. The General Manager testified that this was typographical error, and both documents were from the day after the incident took place.
In response the employee, in sworn testimony, denied using any racial slurs, and claimed that the meeting which was convened the following day was to address, his performance and the fact that he had misread his route, the previous day and failed to collect some passengers. He denied his employer accused him of using any racial slurs.
The Adjudication Officer (AO) noted that the most significant conflict in evidence related to whether the employee had used the racial slur.
The AO noted that the employer failed to produce either witness to support the statements submitted, and that the discrepancy in the dates on the statements, brought their credibility into question. The AO went one step further, stating it was unlikely that the statements were made in 2020, and believed that they were prepared in 2022, dated incorrectly.
The AO found that the complainant’s error in misreading their work docket on the date in question did not amount to gross misconduct, and was not a valid reason for dismissal. As a result, the AO ruled that the complainant had been unfairly dismissed, and awarded compensation in the sum of €8,928.
In this case, the employee claimed that he was unfairly dismissed after he refused to transfer to a new entity. The employee had worked in the employers cleaning department since 2009, initially as an operative, and later as the team leader.
The employee claimed that he was called to a meeting with management and four other employees on 23 March 2021. During this meeting, management informed them, that the cleaning department was being transferred to another company, Bidvest Noonan. In response, the employee asked if he could stay and continue to work for the employer. He was advised, that he couldn’t, as his job was gone. He was also informed, that if he did not agree to transfer, the employer would view his refusal as a resignation. In response, the employee formally refused to transfer on the 14 April 2021. The employer sent him a letter on the 15 April 2021, asking him to reconsider his position, which he refused. The employee commenced new employment in February 2022.
In response, the employer claimed that management met with cleaning staff, and informed them that the cleaning department was being outsourced to Bidvest Noonan in April 2022, and the terms and conditions of their employment, together with their place of work would remain the same.
On the 7th April 2021, a representative from Bidvest Noonan met with transferring staff, and the employee informed him that he would not be transferring. In response, the employer met with the employee, to discuss his concerns. They again informed him that his terms and conditions of employment would not change, only his employer. On the 15 April, the employer wrote to the employee, repeating what would happen upon transfer, and also warned him, that if he refused to transfer, it would be treated as a resignation. The employee responded in writing, confirming his refusal to transfer, which was acknowledged by the employer as a confirmation of his resignation.
At oral hearing, the employer called another employee to give evidence. This employee, gave sworn oral testimony that at no stage was the employee told that he would lose his job and have to apply for a new position with the new employer.
The AO concluded that the employee’s refusal to transfer to Bidvest Noonan amounted to a resignation. While an employee has the right to refuse to transfer to a new entity, every employer has the right to transfer some or all of its business to a new entity under the Transfer of Undertakings regulations. In this case, the employer had exercised its right to transfer, and the employee had exercised his right not to transfer.
Contested WRC cases are no different than court cases. When a party wishes to prove a version of events as fact, or a document, they must call a witness to give sworn evidence of the version of events or prove the document, as fact. When a witness gives evidence, they do so under sworn testimony. Oral evidence, is a primary form of evidence. A primary source of evidence is a first-hand account or original document that provides direct evidence about a particular topic or event. It is an original record of information created by someone who witnessed or experienced the event, or by someone who was involved in producing the document.
In other words, where a party presents a fact unsupported by sworn testimony i.e. contents of a document, almost in all circumstances, it will fail against sworn oral testimony.
The above two cases are prime examples of this.
In the first case the employer claimed the employee was dismissed for gross misconduct. This claim was fully contested by the employee. The employer presented a witness who had not witnessed the original incident on the shuttle bus, and sought to rely on two questionable statements from individuals who were not available to give evidence. The AO found in favour of the employee, based on their sworn oral testimony, over and above unsupported statements, which had inconsistencies and errors led the AO to question their credibility.
This case was widely reported, and also highlights the impact of producing questionable documents, which cannot be support with sworn oral testimony.
In the second case, the employer stated the employee was not dismissed and that it was merely a misunderstanding of the facts and how they events unfolded.
The employee gave sworn oral testimony that he was told, if he didn’t transfer, he would have to start from the bottom and work his way up through the employers ranks again. This claim was disputed by the employer who claimed that the employee had resigned, having refused to transfer to a new employer. The main issue in the case was whether the employee’s refusal amounted to a resignation. Both parties had the right to their chosen actions; an employer can decide to transfer to a new entity, and an employee can refuse. However, as the employee was put on full notice of the consequences of refusal, the AO found that he had resigned.
For the purpose of this case, the employer was able to call witnesses to give sworn oral testimony in support of its position, and to prove the truth of the documents it produced at the hearing of the action, which led to the AO, on the balance of probabilities finding in its favour and dismissing the employees claim.
This case also highlights the importance of clear written communication and proper notice to employees, in such situations.