Tip of the Week – Consider whether accused employee has a right to conduct a cross-examination in a disciplinary process
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The Workplace Relations Commission (WRC) has ruled that a van driver (the complainant), was unfairly dismissed by an engineering company (the respondent) due to procedural flaws in a disciplinary process, including around the question of cross examination of a key witness.
The background was that issues arose regarding suspected falsification of timesheets by the complainant. A third party was engaged by the respondent employer to investigate.
Over a protracted period, the complainant refused to engage with the investigation process – as the WRC put it, he "did not engage with the investigation process on any level whatsoever". Ultimately, the factual investigation was concluded in his absence.
A separate disciplinary process was then commenced which relied on the investigation findings and ultimately led to his dismissal.
Although the complainant's avoidance of the investigation process was “difficult to understand”, the WRC found that he was denied a fair opportunity to challenge key evidence during the disciplinary hearing - specifically, photographic material relating to the allegations. It held that the party who took the photographs and compiled the report should have been required to attend the disciplinary hearing
The failure to allow cross-examination of this key witness was deemed a “fundamental weakness” and the WRC Adjudicator said that "the Respondent should have agreed to the request that the third party who took the photographs and compiled the report should have been required to attend the disciplinary hearing".
The complainant was awarded €3,584 for unfair dismissal (reflecting the fact that the Complainant contributed substantially to his own dismissal) and €7,168 under the Minimum Notice & Terms of Employment Act.
See decision here – https://www.workplacerelations.ie/en/cases/2025/may/adj-00050573.html
This case highlights the importance of fair procedures. While cross-examination of witnesses or accusers is not a standard part of disciplinary process, it does sometimes arise for consideration. Employers should carefully consider an accused employee's request to conduct such cross examination on a case-by-case basis.
The above is for general guidance only and is not intended as professional advice. Advice should always be taken before acting on any of the issues identified.
Please contact Greta Siskauskaite or Barry Walsh should you require specific legal advice on this area or indeed any employment law issues.