The Right to Cross Examine - Workplace Investigations

Does an employee have the right to cross-examine witnesses in a workplace investigation?

Generally, yes. To deny an employee the right to cross-examine a witness during a workplace investigation may amount to a breach of due process and fair procedure.

Failure to allow employee to cross examine witnesses

In Shop Assistant -v- Supermarket (ADJ-00026198), an employee alleged that the employer’s failure to allow her cross examine witnesses in an investigation and disciplinary process represented a breach of fair procedures.

In this regard, the employee sought to rely on the matter of Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272. Here, the High Court stated that:

"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."

Benefit of fair procedures

Having regard to the same, it should also be noted that in the case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332 the High Court stated as follows:

"the authorities ... make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee's employment and the circumstances surrounding the disciplinary action…The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result”.

The Court went on to state that:

"... in this case there was a large measure of consistency between the basic facts as asserted by the personal assistant and the plaintiff's account of what happened ... There was a conflict as to the demeanour of the plaintiff towards the personal assistant. The essential question is whether, given the refusal of the personal assistant to submit to being questioned at a disciplinary hearing by or on behalf of the plaintiff, the plaintiff was likely to be exposed to the risk of an unfair hearing or an unfair result.

The type of disciplinary process which was being implemented ... does not lend itself to the application of the principles of natural justice in the manner in which they would be applied if the plaintiff had been entitled to a hearing by an impartial tribunal, which was not the case.

On the specific arguments advanced by the plaintiff in this case, in my view, the plaintiff has not established that he was not afforded fair procedures by reason of the fact that there was no opportunity for him or his representative to question the personal assistant. The factual dispute which the investigation identified, in my view, did not indicate that it was necessary in the interest of fairness to afford such opportunity."

Hear direct evidence

Similarly, in Roger Martin –v- Coca Cola HBS Ireland Limited (ADJ00022037) it was submitted by the employee’s representative that the requirement for fair procedures and the right to cross examine and hear direct evidence were clearly set out in Gallagher v. Revenue Commissioners [1995] ELR 108. Given the serious consequences for the employee in this case, it was argued, the employer was obliged to act judicially and adopt procedures which were fair and reasonable. 

The Adjudication Officer agreed, noting that:

"There was a considerable weight given by the complainant to the fact that he was not facilitated with cross examination. A right to fair procedures and natural justice in implied into contracts of employment. These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment. The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process. It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made. While this right may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters. Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer. In Borges v. The Fitness to Practice Committee [2004]1 IR 103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures. In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

Entitlement to be told of right to cross-examine

It follows then that in addition to the right to cross examine his or her accuser there is a further entitlement to be told of this right. If an employee fails to ask for cross examination, they cannot be faulted for failing to ask. 

In the recent Supreme Court case, Zalewski v. Adjudication Officer and WRC[2021] IESC 24 the Court was critical of the fact that there was not express provision for cross examination in the Workplace Relations Act, 2015 although it occurred in practice. It held that this was a fundamental aspect of constitutional fair procedures. The Court emphasised the benefits of cross-examination as a core part of fair procedures:

“As long ago as Re Haughey, these features of court proceedings, and in particular, the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination … was one of the rights without which no party ‘could hope to make any adequate defence of his good name.""

Further Information

For further information, please contact the author of this article, Barry Crushell.