UDD254

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00042677 (CA-00053271-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 25 February 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 15 January 2025. The following is the Decision of the Court.

DECISION:

1Background to the Appeal

 This is an appeal by Mr Koffi (the Complainant) against Adjudication Officer’s Decision ADJ-00042677 CA-00053271-001 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim against his previous employer Accenture Limited (the Respondent) that he was unfairly dismissed. The Adjudication Officer held that his complaint failed.

The complaint was lodged with the WRC on 14 October 2022, appealed to the Labour Court 25th February 2024 and a hearing was held on 15th January 2025. The Complainant commenced employment with the Respondent in February 2018 and was dismissed on 27th September 2022. The fact of dismissal is not in dispute.

2 Summary of Respondents submission

Ms Bruton BL on behalf of the Respondent stated that there was an allegation of sexual harassment made against the Complainant in respect of incidents alleged to have occurred on 13th and 14th of June 2022. The complaint was initially made verbally on the 14th June 2022 and then put in writing. The Complainant attended a meeting with his team leader and a People Advisor Specialist where he was informed of the allegations, advised that an investigation in line with Policy 1133 Grievance and Policy 1001 Respecting the Individual was to be carried out. At that point the Complainant was informed that due to the nature of the allegations he was being placed on special paid leave on full pay until the conclusion of the investigation. This was later confirmed by letter of 14th June 2022. The letter also advised that depending on the outcome of the investigation he may face disciplinary charges, and he was provided with a copy of the Disciplinary and Appeal procedure.

 On 15 June 2022, Ms White, Employee Relations Specialist was appointed as the Investigation Officer. She interviewed the person who made the allegation (MT), the Complainant, and two other witnesses TP and MAT. The Complainant with the exception of acknowledging that he had stated that MT was beautiful denied all the complaints. The investigator upheld the complaints and recommended that the report go to the Outcomes Manager.  By email of 15 August 2022 the Complainant indicated that he wanted to appeal the outcome but in a further email he confirmed that he did not want to appeal the outcome of the investigation. Ms Moore the Outcomes Manager having considered the report and the Complainant’s submission decided that the matter should progress to a disciplinary hearing.

 By email dated 18 August 2022 the Complainant was invited to a disciplinary hearing and informed that he had the right to be accompanied and that if the allegations were found to be gross misconduct this could lead to his dismissal. The Complainant wrote to the disciplinary panel stating that he disagreed with the outcome of the investigation and offered to retract what he had said and apologise. The Disciplinary hearing took place on 22 August 2022. The Complainant opted not to be accompanied, and he denied the allegations that were made against him. By letter of 30th August 2022, he was informed that he had breached the Respecting the Individual Policy and that he was to be dismissed with notice. The letter went on to say that his employment would end on 27th September 2022 and that he was not obliged to work his notice. The Complainant was advised of his right to appeal which he chose to exercise. An appeal hearing was held on the 4th November 2022.   The Complainant stated that he did not think the process was fair and he had been suspended for three months. He indicated that he felt the Respondent could have looked at other options like redeployment. He then went on to say that the complaints were orchestrated by a named Manager and were based on racism. He submitted that MT had fabricated the allegations at the instigation of this Manager. The appeal hearing was adjourned to allow the appeal panel to investigate this issue. The appeal hearing was reconvened on 9 November 2022. By letter of 13th January 2023 the Complainant was advised that his appeal was not successful and that the panel had concluded that there was no link between the incident in 2020 that he had raised in respect of a Manager and the incident in May 2022.

Ms Bruton BL submitted that the dismissal was because of his conduct i.e. sexual assault of MT and that the Respondent was relying on section 6 (4) of the Act. In respect of the decision to dismiss, Ms Bruton BL opened the following cases to the Court. Noritake (Ireland) Ltd V Kenna UD88/1893, Kenneth Walker v Maplin Electronics Limited UD 1424/2009 and Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 228.  It was her submission that the case law shows that the Respondent must demonstrate that the decision it took was within a band of reasonable responses in this case it clearly was. In respect of the procedures followed Ms Bruton BL opened Loftus and Healy v An Bord Telecom [1987] IEHC 40 International Vessels Ltd v Minister for Marine ( No2)[1991] 2IR 93, Finbarr O’ Leary and An Post[2016] IEHC 237 Ryan V Law Society of Ireland EEE02/1985 and a number of other cases to support her position that for delay to invalidate a procedure prejudice must be shown and that had not been suggested in this case. It was also her contention that the case law indicates that the procedures do not have to be perfect and in circumstances where the Complainant had not sought to cross examine the witnesses it is not sufficient to state that he had not been afforded the opportunity to do so.

3 Witnesses for the Respondent

 The first witness for the Respondent was Ms I Ameriei who informed the Court that she was Operations Manager at the relevant time. She stated that she was contacted by the Employee Relations Team to be on the Disciplinary panel after the Outcome Manager decided to send it forward to the disciplinary process. It was her evidence that she was provided with a case summary, investigation report and copies of the minutes of the meetings with the Complainant, MT and the witnesses. Ms Ameriei met with the Complainant on 22 August 2022, and it was her understanding that he had been provided with a copy of the investigation report and witness statements. She did not write the letter of 18th August 2022 inviting him to the disciplinary meeting that was done by a HR partner. The Witness confirmed that she had reviewed the policy and had carried out disciplinary hearings before but had not received training in respect of same. She confirmed that no issue of racial discrimination was raised with her during the disciplinary hearing. Ms Ameriei said she took some time to make the decision she reviewed her notes and spoke to the HR Partner. Incoming to her decision to dismiss she considered other options like moving him to another team but in order to move he would have to have the appropriate skillset and go through an interview process, and she did not know if there were other roles available at the time. Another option she considered was a final written warning. However, as the Complainant was denying most of the incidents had occurred, she did not believe it was appropriate.  Ms Ameriei confirmed that she had enquired as to whether there was CCTV coverage but was advised that on the office floor there was not and that in respect of the locker room the CCTV did not record audio so was not relevant. She confirmed that to the best of her knowledge the Respondent does not have a CCTV policy.

In response to questions under cross examination from Mr McGovern BL the witness confirmed that she did not speak to the investigator. She confirmed that she had not looked for access records and she had accepted the advice of their legal person that the CCTV in the locker room was not relevant as there was no audio. Ms Ameriei confirmed that she did not interview MT or any of the witnesses as no new information had come to light. She relied on the contents of the investigators report.

 Ms Ameriei confirmed that when in the course of the disciplinary hearing the Complainant had suggested that she check the CCTV cameras she did not inform him that she had already established that there were no CCTV cameras on the office floor and the locker ones did not have audio.  The witness confirmed that she spoke with the HR Partner who was in attendance at the Disciplinary hearing in advance of the hearing and after it, but it was her decision to dismiss.

 The next witness for the Respondent was Mr R Tuite who heard the appeal. Mr Tuite confirmed that at the relevant time he was a Senior Operations Manager and that he did not know the Complainant. He confirmed he received a letter of appeal from the Complainant and an appeal meeting was held on 4 November 2022, it was his understanding that his role was to see if there was any basis to change the finding of the disciplinary panel. He was given a case note, the investigation report and the disciplinary outcome. A further meeting was held on 9 November 2022 when the Complainant stated that he had further information relating to an incident in 2020 and that the complaints were orchestrated by a named Manager and were based on racism. The appeal hearing was adjourned to allow Mr Tuite look into this. However, after making enquires, he was satisfied that this was not the case and there was no link between an incident in 2020 and MT’s complaint.

 Mr Tuite stated that on reviewing all the papers including the correspondence from the Complainant he felt that on the balance of probabilities what was alleged by MT to have happened probably did happen. He felt in those circumstances that dismissal was the appropriate sanction. In response to a question from Mr Mc Govern BL under cross examination he confirmed that the appeal meeting was an opportunity for the Complainant to raise any issues he had with the process, he chose to raise the racism issue which was looked into but he could not find any link between the incident in 2020 and MT’s complaint.

4 Summary of Complainants submission

Mr McGovern BL submitted that up to the time of his dismissal the Complainant was an exemplary worker with an unblemished employment record. The Complainant was informed on the 14 June 2022 that a complaint of sexual harassment had been made against him by MT. He was interviewed some days later by the appointed investigator. He explained to the investigator that he had joined a conversation about MT’s dog and had asked to see a picture of the dog as he too has a dog. He was interviewed again on the 30 June 2022, and strongly denied that he had ever sought her social media contacts. He also denied that he had stared at MT’s backside or grabbed her and denied all the allegations except for calling her beautiful. He informed the investigator he had said that to cheer her up. In respect of the allegation of placing his hand on her shoulder he had tapped her shoulder in a friendly manner to see if she was ok. He offered on several occasions to apologise to MT. He explained to the investigator how MT had gotten it wrong he was not interested in her, he had a partner that he lived with who worked on the next floor. The Complainant had sought CCTV footage, but it had not been provided. By letter of 20 August 2022 his employment was terminated. He appealed that decision but was unsuccessful.

Mr McGovern BL submitted that the Respondent could have explored lesser sanctions and that the Complainant was not afforded fair procedures by the Respondent in coming to the decision to dismiss him. The Complainant had requested CCTV footage be looked at and it wasn’t. He had identified potential witnesses who had not been interviewed. The Complainant had not been afforded an opportunity to cross examine MT or the two witnesses.

Mr McGovern BL opened several cases to the Court including Hennessy v Read and Write Shop Ltd UD 912/1978.  Re Haughey [1971] I.R.217, Lyons V Longford Westmeath Education and Training Board [2017] IEHC 272 Frizelle v New Ross Credit Union [1997] IEHC 137in support of his submission that fair procedures are a crucial part of a dismissal procedure and failure to provide such procedures has to mean the dismissal is unfair. He also opened the Code of Practice SI.146/2000 Code of Practice on Grievance and Disciplinary Procedure which provides guidance to Employers, and some cases supporting the position that the test for the Court is the band of reasonableness test. Mr McGovern submitted that the Respondent did not follow fair procedure and the decision to dismiss was not within the band of reasonableness and therefore it was an unfair dismissal.

5 Relevant Law

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

6.Unfair dismissal

(1)

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2)……………..

(3)………….

(4)

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)

the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)

the conduct of the employee,

(c)

the redundancy of the employee, and

(d)

the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

6 Discussion and Decision

Mr McGovern BL submitted that the procedure followed by the Respondent did not amount to fair procedure and therefore the dismissal had to be considered to be unfair. In support of that contention, he identified several perceived flaws in the process. The Court considered these issues both individually and collectively and concluded that the procedure while it may not have been perfect was not flawed to an extent that the Complainant was disadvantaged.  The Court came to that conclusion based on the following, and the submissions, evidence and case law before it.

 At the investigation stage the Complaint was afforded an opportunity to appeal the decision of the investigator which he opted not to do. Therefore, in the next stage of the process the Disciplinary panel were entitled to rely on the contents of that report. The Complainant in the disciplinary stage did raise the issue of CCTV footage and while there is no logical reason for the Disciplinary panel not to have informed him that they had enquired about same and the outcome of those enquires no fact stemmed from this, that could have changed the outcome. As set out above there were no cameras on the work floor and it was not disputed that the Complainant and MT were in the locker room at the same time. The CCTV did not record audio so would have been of no benefit in discerning what was said. The Complainant did identify  2/3 witnesses that were not spoken to, and while best practice would dictate that they should at least be spoken to, to see if they had anything relevant to contribute, at no stage in the process up to and including the Court hearing did the Complainant ever identify any potential information that they could have provided that would have been of assistance to his case. On that basis the Court cannot conclude that this failure negatively impacted on the process.

 While there was a lack of clarity over who could accompany the Complainant during the process and their role, the Complainant chose at all stages in the process not to be accompanied so that lack of clarity had no bearing on the procedures. Mr Mc Govern BL submitted that the Complainant was not afforded the opportunity to cross examine MT or the witnesses and that was fatal to the process. However, as stated by Keane J in Finbarr O’ Leary v An Post [2016] IEHC 237 “The most obvious difficulty that confronts the Plaintiff in advancing that argument is the fact, not in dispute that he did not seek to invoke any such entitlement either before or during the hearing.”

The Court then looked at whether the decision of the Respondent fell within the “band of reasonableness” as articulated in the caselaw citied earlier and the Court found it did. The Court found based on the submissions before it and the evidence it heard that the Respondent believed that the Complainant had misconducted himself as alleged based on the outcome of the investigation which was carried out and which the Complainant opted not to appeal. Taking into consideration the nature of the misconduct and the Complainant’s failure to acknowledge wrongdoing on his part, the Court finds that the decision to dismiss the Complainant was a reasonable one.

The appeal fails. The decision of the Adjudication Officer is upheld.

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
FC	______________________
12 February 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.