UD1209/2011

 EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                             CASE NO.

EMPLOYEE - claimant                                                                       UD1209/2011

Against

EMPLOYER – respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr M. Gilvarry

Members:     Mr. D. Morrison

                    Ms. A. Moore

heard this claim at Sligo on 3 October 2012, the 23 January 2013, the 24 January 2013, the 9 January 2014 and the 10 January 2014

Representation:

Claimant(s) : Mr. Brian Sugrue BL instructed by:

                      Ms Aine Kilfeather, Kilfeather Keyes, Solicitors, 13 Market Street, Sligo

Respondent(s) : Mr Padraig O’Grady, IBEC, 3rd Floor, Pier One, Quay Street, Donegal Town

                           Mr Declan Thomas, IBEC, 3rd Floor, Pier One, Quay Street, Donegal Town

The determination of the Tribunal was as follows:-

Background

The claimant was employed by the respondent firstly as a Supervisor on the night shift until March 2010 and then as a Tool Setter on two shifts. He is a married man with a young child and was dismissed from his employment for bullying a colleague.

He and his wife were introduced to JK in August 2007. Relations were fine between the parties but this changed. JK made five separate complaints against the claimant which followed on from an alleged incident on the 20^th November 2010 at the claimant’s family home.

JK alleged the claimant had struck her, the claimant alleges JK struck him twice when she arrived to his home uninvited. Both parties reported it to the Gardaí and were each told not to approach the other.

The five incidents of bullying JK alleged, were:

1. “2911/2010 - (the claimant) came up to me for the first time at work since the incident on the 20^th November. I am standing with another Team Leader. I saw him coming towards me but I thought he wanted something from the other person. He spoke to me but I didn’t hear what he was saying to me.   Completely in shock as I knew the Garda had warned him to leave me alone, but it seemed he still had something to say. I approached him to find out what he was saying to me; he walked away when I asked.
2. 16/12/2010 – As usual I arrived early for work on the night shift. I was standing next to ‘air products’ when I heard someone calling me. I looked around and saw it was (the claimant). He asked me could I tell him something, for the last time. I told him I didn’t want to talk to him and I walked away. As I did he followed me. I stopped to talk to other people but he finally did catch me alone in the middle of the floor and said that I was the only person he ‘can’t forgive’.
3. 06/11/2011 – I was standing at the top end of the floor, just beside the Supervisor’s computer. (The claimant) came up to me and said that I was sleeping with other men while I had a grudge with him when he was with other partners. He actually said this in a much more abusive way than I like to make explicitly clear here. I just smiled and didn’t look at him.
4. 11/1/2011 – I was again at the top of the floor, squatting to put some materials into a drawer, when I heard (the claimant) saying to me, ’Congratulations! You’re worse than (A)’. I didn’t even look at him. That was the first time he had approached me at the end of the shift (morning) – I just walked away to clock out.
5. 17/01/2011 – I came to work early, as usual. When I found out that the other Team Leader wasn’t present I went to see (B) who I thought was at the top of the floor. As I went (the claimant) walked beside me and said something about ‘silent phone calls’ and doing something ‘by internet’. I couldn’t hear exactly all that he was saying. I realised he was again intimidating me I just stopped and turned back so that I didn’t even have to see him in my view – I looked around in the hope that someone could see what was happening. I then had a chat with the Team Leader and went then to the Supervisor.”

Respondent’s Case:

The witness (CM) investigated the alleged bully complaint and reported the matter to the general manager (PD).

CM met with the claimant who had a prepared statement with him. He stated that he and his wife had befriended JK and her boyfriend and spent time together. JK spilt with her boyfriend and this was when, he said, problems began to arise. JK, he said, began making up false stories about him and her. In June 2010 he moved house but did not inform JK. On the 20^th November 2010 JK arrived at their home. A heated discussion ensued; JK allegedly struck the claimant twice. The incident was reported to the Gardaí who advised him to stay away from JK.  

JK submitted she and the claimant were having a relationship, the claimant refuted this allegation.

CM interviewed six other staff members. One interviewee (KW) a house mate of JK said that she had seen the claimant’s car at the house and said that he was JK’s boyfriend.

CM met JK again on the 4^th March 2011 to hear her response to statements which had been made since the first meeting. JK said that she had photographs of the claimant and herself in Manchester and Paris. These photos were later emailed to the claimant. The claimant later questioned the photos saying they were “photo-shopped”. CM also met with the claimant’s wife.

CM submitted a report to management on the 28^th March 2011. CM said that she believed there was a relationship between JK and the claimant and JK’s account was more credible.

KW gave evidence to the Tribunal. She worked with JK and shared a house with her. She submitted that the claimant was JK’s boyfriend and JK had spoken to her about their relationship.

The Financial Controller (BR) gave evidence. PD had requested her to carry out the disciplinary meeting which was held with the claimant and his representative on the 12^th April 2011. She had studied CM’s report in full prior to the meeting.  

The claimant denied that two of the incidents had ever occurred. The witness stated that she tried to ascertain the relationship between the claimant and JK and was told it was platonic.  The witness told the Tribunal that she took time to consider and review the whole matter and wrote to the claimant on the 14^th April 2011 informing him that he was being given four weeks’ notice of his dismissal and could appeal the decision within three working days to the Quality Manager (SM).

The Quality Manager (SM) who carried out the appeal hearing gave evidence. The appeal hearing was re-scheduled three times for various reasons. SM told the Tribunal that he felt the claimant and his representative did not seem interested in attending an appeal hearing.

The appeal hearing took place on the 5^th May 2011 which took about one and a half hours. SM explained that his remit was to hear any new information that the claimant had in regard to the allegations JK made against him and to ascertain if the respondent had carried out proper procedures. He found that the respondent had and no new evidence was given by the claimant. He discussed the matter with management and the decision to dismiss was upheld.

At the resumed hearing on the 9 January 2014 a supervisor (CMcG) outlined to the Tribunal how on the 17 January 2011 at the end of a shift he observed JK and the claimant in conversation. A few minutes later JK was at his workstation and was visibly upset. He accompanied her to the production office where she told him the claimant had upset her. The witness was aware of the bullying allegations made against the claimant by JK and had a week earlier been asked to keep an eye on the shift changeover. He suggested to JK that in future she should remain at the supervisor’s station until the claimant had finished his shift.

The production manager (PD) had managed the claimant and coached him in the role of supervisor. On the 13 January 2011 JK made a verbal complaint alleging she was being harassed by the claimant. He advised her to put the complaint in writing in order to have the matter investigated in line with the policy of the company. The witness took the decision to engage an outside independent expert to formally investigate the matter. He instructed the supervisor to suspend the claimant pending the outcome of the investigation.

JK commenced employment with the respondent in September 2007 and was promoted to team leader in August 2008. In March 2008 an intimate relationship commenced between JK and the claimant. She was aware the claimant was married and acknowledged that she was a friend of the couple. Over the course of the relationship they took trips away to Manchester, Liverpool, Paris and travelled around Ireland together. She was lead to believe that the claimant was no longer with his wife however she became suspicious and on the 20 November 2010 called to his home. She recalled slapping the claimant and throwing a gift at him which he had given her the previous day. The witness submitted that the first incident of alleged harassment occurred on the 29 November 2010, the second on the 16 December 2010, the 6 January 2011, on the 11 January 2011, and the fifth incident on the 17 January 2011. She had reported the harassment on the 13 January to PD who had advised her to put her complaint in writing. A written account of the incidents was sent to PD soon after.

Claimant’s Case

The claimant described JK as once a friend and denied any intimate relationship. He submitted his account of what occurred on the 20November 2010 at his home when the claimant called uninvited. JK slapped him twice and he dragged her away from the front door of his house but denied that her jacket was torn during the incident. The witness claimed that JK was stalking him and his family and had earlier moved house due to her behaviour.

The claimant recalled being at JK’s house on one occasion only to carry out a repair. He denied that any of the incidents of alleged harassment took place and submitted that following Garda advice avoided JK in the workplace. He described the photographs submitted by JK to the Tribunal as photo-shopped.

On the day of his suspension he was given a copy of JK’s written statement. The claimant believes that certain witnesses were not interviewed by CM over the course of the investigation into the alleged harassment.

The claimant’s wife gave evidence of being in Ireland with the claimant on the dates JK claims he was away with her. She and the claimant returned home to Poland for a holiday in January 2008 and their son was born in July 2008. The witness supported the claimant’s evidence that they had been friends with JK until she became overbearing and gradually cut her off.

Determination

The Tribunal has carefully considered the protracted evidence given over a long period in relation to this matter.

The Tribunal’s function in cases of this nature is not to duplicate the investigative and disciplinary proceedings of the employer.   The Tribunal’s function is rather to decide whether the dismissal of the employee was fair or unfair and in reaching this determination must pay due regard to the reasonableness of the actions of the employer in dismissing the employee.   It is not the function of the Tribunal to substitute its own view of what the employer should have done based on the evidence heard by the Tribunal, but rather whether the employer acted reasonably in the investigative and disciplinary process and whether therefore the dismissal was fair or unfair. Reasonableness is required on both sides, the employee is also under a duty to assist the investigation and bring forth points in his favour.

In this particular case, there was a lot of evidence extraneous to the question of whether or not the dismissal was fair or unfair.   The reason for this extraneous evidence was firstly to set the background to which the complaint of bullying was made and secondly because it had a bearing on the credibility or otherwise of the claimant and the employee who complained of being bullied by him.   While it is not the function of the Tribunal to determine the truth or otherwise of any allegations extraneous to the decision to dismiss, nonetheless, the Tribunal was extremely unimpressed by the evidence by and on behalf of the claimant, in particular when he attempted to explain photographs as being photo shopped and text messages as being due to “hacking”. No evidence of this was ever produced to the Tribunal, apart from the claimant’s assertions. The Tribunal would have expected to hear evidence in this regard at the hearing of the matter and the unfortunate delay in the proceedings due to the illness of the one of the representatives left the claimant with a very large length of time to obtain and produce such evidence to the Tribunal.

The attitude of the claimant all along to the investigation against him was at all stages passive.   He claimed that photographs were photo shopped, texts were hacked, he did not seek statements from other workers to assist him, rather suggested that the investigator might interview other workers.   The claimant’s effective lack of cooperation with the investigation into the bullying complaint, was in the Tribunal’s view a very large factor in the decision against him by the investigator, which ultimately led to his dismissal.

The respondent in this case, in the Tribunals view, acted reasonably in referring the matter to an investigator early and in relying on the investigators report to reach a decision in the matter.   However the Tribunal was not completely satisfied with the procedure undertaken when finalising the report and even though the claimant’s response to the report was passive and in the Tribunals view, uncooperative the Tribunal felt that the investigator, who did a very long and comprehensive investigation should have finalised by interviewing the witnesses as suggested by the claimant. The electronic copies of the photographs provided by JK should have been furnished to the claimant so that he could produce evidence of photo shopping if he so wished, and by furnishing a copy of the report to the claimant for his final comments before the final report was signed off.

Based on these purely procedural matters, the Tribunal determines that the claimant’s dismissal was procedurally unfair.

However the Tribunal notes that the claimant did not bring any of these suggested witnesses or statements from them before the Tribunal, and did not bring any evidence of photo shopping or hacking of his email accounts before the Tribunal. The Tribunal is therefore not convinced that had the investigator given him the opportunity to bring these matters forth, that anything would have been furnished to the investigator.

In all the circumstances of the case, even though the Tribunal finds that the claimant was unfairly dismissed, the Tribunal feels that he has contributed 100% to his own dismissal.

In the circumstances, therefore, the Tribunal have determined that the most appropriate remedy in this case would be compensation and have decided to award no compensation to the claimant.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)