UD273/2010

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                   CASE NO.

Employee        -           Claimant                                                                     UD273/2010

against

Employer         -           Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr J Flanagan BL

Members:        Mr E Handley

Mr F Barry

heard this claim at Dublin heard this claim at Dublin on:

9^th May 2011,

17^th October 2011,

18^th October 2011,

11^th June 2012,

13^th June 2012,

14^th June 2012,

15^th June 2012,

28^th January 2013,

29^th January 2013,

30^th January 2013

31^st January 2013

Representation:

Claimant:                     Ms Aoife Carroll BL instructed by:

Mr John Kellegher Solicitor,

                                    4 - 5 St. Mary’s Terrace, Dunboyne, County Meath                         

Respondent:               Ms MP Guinness BL, instructed by:

Ms Ann Brennan of O’Mara Geraghty McCourt Solicitors,

                                    51 Northumberland Road, Dublin 4

It was common case that the appellant had been an employee of the respondent at the material times. The fact of dismissal was not in dispute and therefore the respondent employer proceeded first. Both parties availed of their statutory entitlement to make an opening statement.

The respondent’s representative advised the Tribunal that the claimant had been dismissed for gross misconduct following an investigation, disciplinary process and an appeal.

The claimant’s representative told the Tribunal that the respondent had failed to investigate properly, had reached a conclusion that did not reflect the evidence and had imposed a disproportionate sanction.

The respondent operates a large hotel. The appellant had been the deputy general manager of the hotel. The respondent had retained a contract cleaning company to provide certain general housekeeping services to the hotel. This company, which will be referred to hereafter as OT Limited, provided approximately 30 cleaning staff to the hotel. Those staff of OT Limited who worked at the hotel were managed by AC, whose title was accommodation manager. AC was an employee of OT Limited and not of the respondent.

AC, the accommodation manager, was a female employee of OT Limited. The claimant was a male employee of the respondent. In a written statement dated 12^th July 2009 AC made allegations of harassment, including sexual harassment, against the claimant. A human resources manager with OT Limited responded to AC by letter dated 14^th July 2009 stating that he had received her complaint about the claimant that morning, that he regarded as the matter as serious and that an immediate investigation had commenced into the allegations. He further stated that JB, the managing director of OT Limited was supplying FO’C, the general manager of the respondent with a copy of her statement. A meeting was held on 15^th July 2009 between AC, the accommodation manager from OT Limited, JB who was the owner of OT Limited, FO’C the general manager of the respondent and JH, who was the financial controller of the respondent.

On 15^th July 2009 the claimant was suspended on full pay pending an investigation into the allegations made by AC. OT Limited provided AC with work elsewhere so that both AC and the claimant were removed from the hotel during the investigation.

The claimant gave a 12 page response to the allegations. Interviews were conducted with 9 members of staff.

A human resources manager for the respondent, AT, wrote letters dated 6^th October 2009 to a number of individuals thanking them for their witness statements and inviting them to attend at a disciplinary hearing. On the same date AT, the human resources manager also wrote to AC a very similar letter, which also stated that “Following your recent complaint of sexual harassment and bullying against [the claimant] we have now completed our investigation. We have up held [sic] your complaint of sexual harassment but not your complaint of bullying.”

The letter was sent prior to the claimant being afforded a disciplinary hearing into AC’s allegations of sexual harassment and bullying. The Tribunal is fully satisfied on the evidence of this letter alone that the respondent had predetermined the outcome of the disciplinary hearing such that the dismissal of the claimant by the respondent was procedurally unfair.

The two categories of allegations against the claimant were of sexual harassment and of bullying (of a non-sexual nature). The Tribunal finds that the disciplinary charges brought against the claimant by the respondent were poorly particularised but the Tribunal does not consider it necessary to reach a conclusion as to whether the charges were so poorly particularised as to support a finding that the dismissal was procedurally unfair in that specific aspect.

Prior to the disciplinary hearing, the respondent carried out an investigation into the allegations against the claimant. This investigation was carried out by FO’C, general manager at the hotel. It appears the best summary of the disciplinary charges may be found in the investigation report at pages eight and nine. In respect of the allegations against the claimant of bullying (non-sexual) FO’C found that “... the incidents complained of by AC occurred, however...” he did “... not consider that the actions amount to bullying. This aspect of AC’s complaint is not upheld.” Instead those incidents were merely considered by FO’C to “be categorised as inappropriate management style and in breach of [the hotel’s] “Dignity at Work Policy and Procedure”. It was common case between the parties that the bullying (non-sexual) allegations were not proceeded with after that point. At various times in the course of the case the claimant’s management style was described as “robust” but as this style was not claimed by the respondent to form any part of its decision to dismiss the claimant the Tribunal considers it unnecessary to deal with it in a great depth.

Dealing with the other allegations, FO’C concludes his investigation report with the words “I uphold her complaint of sexual harassment.” It is clear to the Tribunal from this statement and the generality of the evidence in the case that the respondent had predetermined the outcome of the disciplinary hearing such that the dismissal was procedurally unfair.

The disciplinary meeting was held on 13^th October 2009 and the decision maker was BS, the chief financial officer. In the note of the hearing, as furnished by the respondent, BS is paraphrased on the first page of the note with the words “BS explains the process and states that there was an investigation which has found sexual harassment has occurred and under the Hotel’s Policy it is gross misconduct and the outcome of the meeting could be [the claimant’s] dismissal. He states that no decision has been made as yet and that he will listen to everything that [the claimant] and [his representative] has to say.” On page eight of that note the claimant is quoted as saying “... today’s outcome is predetermined”. The Tribunal accepts the claimant’s characterisation as accurate. In a letter dated 21^st October 2009 BS again refers to the finding by FO’C that the disciplinary charge of sexual harassment was upheld.

The claimant availed of his entitlement to appeal the decision of BS to dismiss him to CD, a managing director of a company which manages the hotel. By letter dated 5^th November 2009 CD wrote to the claimant stating the outcome of the appeal and confirming the dismissal of the claimant. The letter contains the following paragraph:

“Having given careful consideration to the submissions made by you and by your legal representative at the appeal hearing and also examined in detail the investigation findings of FO’C, together with all witness statements and minutes pertaining to the investigation and the disciplinary process, I am satisfied that the incidents in question constitute sexual harassment which constitutes gross misconduct under the [hotels] Disciplinary Policy and that the appropriate sanction is dismissal.”

The Tribunal has considered the oral evidence before it and is satisfied that BS and CD treated the finding of the investigation report by FO’C as a fixed conclusion that the claimant was guilty of sexual harassment in respect of which they had no intention of exercising any judgement themselves or varying that conclusion in any way. The Tribunal finds that failure by the respondent’s servants and agents to fulfil their fundamental obligation to come to a finding of fact on the disciplinary charge against the claimant at both the disciplinary hearing and the appeal hearing is a breach of fair procedures such that the dismissal is unfair.

In the note of the disciplinary meeting held on 13^th October 2009 at page seven, reference is made to a meeting with JKav, a director. The claimant stated that it was the first meeting he had with anyone from the hotel. The Tribunal understands that there were a number of meetings between the claimant and JKav. It was claimed that some of those meetings were off the record and some were not. The claimant has alleged that at the first of these meeting JKav said that the best thing that the claimant could do was take “walk money” and go. At the second meeting the claimant alleges that JKav said that the claimant “... was “fucked” and that he, JKav, could put it right, but stated that we cannot have you back”. It recorded at page eight of this note that AC, a solicitor for the respondent, stated that they were without prejudice conversations. In response the claimant says that it was “... relevant because is [recte it] shows that the decision was already made.” The claimant went on to add that “... JKav stated that the allegations were bullshit”.

The Tribunal holds that irrespective of any agreement between the parties to engage in without prejudice conversations, the content of those conversations may be admitted into evidence before the Tribunal and considered in reaching its ultimate conclusion where that content of the conversation is not covered by a form of privilege known to law. The Tribunal finds that the above statements attributed to JKav by the claimant are admissible in evidence before the Tribunal as falling outside the scope of privilege and as being relevant evidence of an intention on behalf of the respondent to manage the potential liability for any claim for sexual harassment that might be brought against the respondent by terminating the employment of the claimant, irrespective of the merits of the allegations against the claimant.

The Tribunal notes in the papers furnished to it a letter dated 5^th November 2010 from solicitors for AC alleging that she had suffered “... severe personal injuries as a result of the harassment she suffered while in the course of her employment with ...” OT Limited at the hotel.

Where an employee sexually harasses another person the employer may be exposed to the risk that it may be held vicariously liable for personal injury caused by the wrongful actions of its employee. However, if the employer can show that it had insufficient reason to believe that its employee would sexually harass another and took all reasonable steps when a complaint was brought to the employer’s attention then the employer may escape liability. For an action in negligence against to succeed it is usually necessary for the injured party to prove that the employer could have reasonably foreseen that its employee would sexually harass the complainant. Claims for damages sexual harassment are usually only successful where the employer is shown to have ignored a meritorious complaint. The Tribunal must be alert to the possibility that employers are cynically terminating the employment of employees even where the complaint is on the balance of probabilities untrue in order to place the employer in a position to say that it had no reason to believe that those employees which it retains have been the subject of a previous complaint of sexual harassment. The Tribunal will take appropriate action to ensure that an employer who believes it is cheaper to lose a case of unfair dismissal defend a case of sexual harassment will not always profit from such an approach. The Tribunal considers the statement by JKav that the allegations were “bullshit” but that the claimant was “fucked” and that the respondent could not have the claimant back evidence of an employer acting in bad faith in dealing with the disciplinary allegations against the claimant.

In the letter dated 5^th November 2009 rejecting the claimant’s appeal against dismissal, CD states that he met with FO’C “... on 3^rd November 2009 in order to raise your submission that he was inappropriately influenced in his investigation and findings by [JKav]”. “I am satisfied from my meeting with him that he reached his findings independently and was not influenced by [JKav] or indeed any other party and that the investigation was conducted in a proper and unbiased manner.” The Tribunal is satisfied that by meeting with JKav in the absence of the claimant and his representative after the appeal hearing and then taking into consideration evidence so obtained from JKav in reaching his decision CD fundamentally breached the standards of procedural justice referred to by the term audi alteram partem.

The claimant denied the allegations against him and attended the disciplinary hearing where he gave exculpatory evidence on his own behalf. The core of his defence was that AC had made false allegations against the claimant as some kind of pre-emptive strike against him, to damage and to discredit him, because he had obtained information implicating AC in the illegal sale of false passports. The allegation was that non-Irish nationals from countries without an entitlement to work in Ireland were buying false passports for other European Union states such that the non-nationals would appear to be citizens of a state with an entitlement to work in Ireland.

A person who had been employed by OT Limited in the hotel admitted to the claimant that this person had purchased a passport from AC. The claimant provided the Tribunal with photocopies of two passports. Each passport contained a different photograph of what appeared to be the same person. Each document carried the same name and date of birth for the person holding the passport. However, one appeared to be a Romanian passport and stated the holder to be a Romanian national, while the other appeared to be an Hungarian passport and stated the holder to be a Hungarian national. At the material times, Romanian nationals did not have an automatic entitlement to work in Ireland, while Hungarians had that right. The Tribunal finds as a matter of fact that the claimant had substantive reason to suspect that AC was supplying false passports.

It was the claimant’s evidence at the disciplinary hearing that he spoke to AC about the sale of passports out of concern for her “... as a friend as he thought she was messing with dangerous people. He stated that she should let JB [proprietor of OT Limited] do his own dirty work ...” The claimant went on to say that it was his belief that the claimant made the allegations to discredit the claimant as a witness. The claimant explained to BS that supporting evidence which he was providing at the disciplinary hearing, and which had not been furnished to the investigation conducted by FO’C, was not brought up earlier because the claimant was in fear. At page 9 of the note of the disciplinary hearing the claimant is quoted as saying that “..the reason they weren’t produced before now was fear. KS says he was afraid of repercussions that someone could come to his house with at 2am in the morning with a gun and states that he has increased security at his house and has security cameras at his house.”

The claimant gave further evidence at his disciplinary hearing that false PPS numbers were being obtained for €300 to €600. The claimant also produced to the disciplinary hearing passports and revenue documents. The claimant also alleged that JB, the proprietor of OT Limited, “... intimidated him in his office and told him, by his body language, what would happen if he brought it up.”

Subsequent to the disciplinary hearing and by letter dated 21^st October 2009, FO’C wrote to the claimant advising him that his allegations concerning the sale of false passports had been referred by the respondent to the National Employment Rights Authority and the Department of Social and Family Affairs.

By letter dated 6^th October 2009 AT a human resources manager for the respondent stated that “[the claimant] has now been invited to a disciplinary hearing were [sic] he will be represented by his lawyer, [JK]. [JK] has requested an opportunity to cross examine yourself (the complaint [sic]) and the witnesses.” The letter asked AC to confirm her attendance at the hearing. AC declined to attend and the disciplinary hearing was conducted in her absence. In summary, the respondent employer advised the complainant AC that her complaint had been upheld in advance of the disciplinary hearing, warned her that she would likely be cross-examined by the claimant’s solicitor if she attended and merely requested AC to attend - ending the letter with a line which allowed her to indicate her attendance or non-attendance as she saw fit. The Tribunal is unsurprised that AC chose not to attend the hearing.

The Tribunal is not aware of any effort made by the respondent to compel AC to attend as a witness. An employer may direct that its employee attend as a witness. AC was not an employee of the respondent but of a contractor retained by the respondent. There is no evidence of any great effort by the respondent to persuade the contractor, OT Limited, to direct its employee to attend at the disciplinary hearing. The Tribunal is of the view that given the commercial power that the respondent had in relation to OT Limited it could have exercised considerable pressure upon OT Limited to have OT Limited order its employee AC to attend.

There was no attendance by AC or any corroborating witness to support her allegations of sexual harassment at the disciplinary hearing or at any subsequent appeal hearing. The claimant denied the allegations against him. The Tribunal finds that the respondent reached a conclusion, that the claimant had sexually harassed AC, which was unsupported by the evidence before it and perverse to the evidence which it did hear. The Tribunal regards it as settled that a decision maker conducting a disciplinary hearing must satisfy him or herself of the truthfulness of facts in dispute by hearing the evidence directly from the relevant witnesses and not by relying on a mere investigation report.

AC and certain other witnesses again refused to appear at the disciplinary hearing, but did attend and give evidence before the Employment Appeals Tribunal. The Tribunal finds that there was insufficient reason justifying the non-attendance of AC at the disciplinary hearing. Given the general circumstances of this case the Tribunal finds it incredible that the respondent could not have conducted, and AC attended at a hearing where AC could have been protected from intimidation. The Tribunal considers the suggestion that the claimant would have intimidated AC at the disciplinary hearing in front of the decision maker when the claimant’s defence was that he denied bullying or harassment to be at best improbable.

Having heard the evidence of both AC and the claimant the Tribunal prefers the evidence of the claimant. The Tribunal finds that the dismissal was unfair. It is therefore appropriate for the Tribunal to assess the contribution of the claimant and in order to do so the Tribunal needs to come to a conclusion on the substantive matter, whether the claimant sexually harassed AC. The Tribunal finds that the claimant did not sexually harass AC.

According to a note of a meeting held on 15^th July 2009 AC had alleged that at a staff meeting in the back office KS had said “they had been discussing who within the hotel was shaggable – he stated that he could smell her before he saw her and how shaggable she was – he also stated that there was a gentleman in the hotel who would ride the arse of AC”.

According to a statement signed by AC and dated 21^st July 2009 describes the meeting in the back office again and she claimed that the claimant in front of other staff members “... began to relay a conversation had with other male managers and a man ...” AC claimed that KS said something to the effect of how sh***ble I was and that I was up there at the top. [KS] then said that “he would have no problem giving me one anytime”.

It was the claimant’s case that another person, MJ, had said “You are alright [the claimant], [AC] will give you one” and that AC had laughed and said “Not bad for an auld one” to which the claimant had said “Well [AC], as they say, the older the fiddle, the sweeter the tune.” KS denied making any other remarks.

The investigation report was produced by FO’C who said that WW “... has corroborated that ...” the claimant, in front of a number of others “... stated ... that he would have no problem giving her one anytime and made reference to how shaggable she was.”

WW said that “KS made some comment that they were just discussing who would shag AC.” WW said that the discussion referred to was not occurring when AC joined the group. WW said that AC “... said something like that is reassuring but did not continue the conversation”. When pressed, WW thought that “It was a random quote out of the blue – might even have been that AC was late for the meeting and this was the end - the quote was something along the lines of “We had just been discussing earlier if we were single we’d shag you”.

In fact, WW in his statement did not corroborate AC’s claim that the claimant would have no problem giving her one anytime. WW did not corroborate AC’s claim that the claimant had relayed a conversation held earlier or that the claimant stated that there was a gentleman in the hotel who would ride that arse of AC.

The investigator, FO’C, having erred in fact in reaching his finding that WW had corroborated AC’s claim that the claimant would have no problem giving her one anytime, then uses that finding as basis to hold that all other claims of sexual harassment against the claimant were probably true.

The Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards to the claimant reinstatement. For the purposes of calculating the arrears of remuneration to which the claimant is now entitled the Tribunal finds that the remuneration of the respondent is €922.50 gross per week.

The Tribunal notes that both parties indicated that their preferred remedy, if the claim succeeded, should be compensation. The Tribunal is of the view that the award to be granted (from reinstatement, re-engagement and compensation) is ultimately a matter for the Tribunal to decide. The Tribunal will normally enquire from each of the parties as to the preferred award and is often is influenced by the preferences of the parties but such preferences are not determinative of the matter.

Under the Unfair Dismissal Acts the primary awards are reinstatement and re-engagement and compensation is a secondary remedy. The legislation also requires that where the Tribunal awards compensation the Tribunal must state why that remedy was considered appropriate. There is no such requirement to justify the choice of reinstatement or re-engagement. From this one might discern that the legislature encourages reinstatement and re-engagement rather than compensation. In practice compensation is the usual award and reinstatement and re-engagement are infrequently given. There are a number of reasons why reinstatement tends to be infrequently awarded. One of those reasons is view that awards of reinstatement are almost always appealed and on appeal to the Circuit Court compensation is almost invariably substituted, such that the Tribunal, in awarding reinstatement is merely delaying the receipt of compensation by the claimant.

In the circumstances of the present case the Tribunal is of the view that compensation would be an inadequate award both from the point of view of quantum and reputation. Firstly, the Tribunal considers reinstatement to be the appropriate award because the damage to the claimant’s reputation is so great that only reinstatement restores the claimant’s reputation to the required level. Secondly, the Tribunal is of the view that the award of compensation, being limited by statute to a maximum of two years remuneration, is an insufficient amount to recoup the claimant’s financial loss. A claimant to whom reinstatement has been awarded is entitled to claim an arrears of pay that may substantially exceed two years remuneration.

Sealed with the Seal of the

Employment Appeals Tribunal

This     ________________________

(Sgd.)  ________________________

(CHAIRMAN)