EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Employee - claimant UD2250/2011
against the recommendation of the Rights Commissioner in the case of:
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Dr. A. Courell B.L.
Members: Mr. D. Morrison
Mr M. McGarry
heard this appeal at Castlebar on 9th July 2013 and 4th November 2013
Representation:
Appellant(s) :
Ms Martina Weir,
SIPTU, Member Information & Support Centre, Liberty Hall, Eden Quay, Dublin 1
Respondent(s) :
Mr Boguslaw McArdle,
Patrick J Durcan & Co, Solicitors, James St, Westport, Co Mayo
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of the employee appealing the recommendation of a Rights Commissioner Ref – R-098896-UD-10/JW.
Summary of Evidence
The HR manager (ER) for the respondent gave evidence of the claimant commencing employment in January 2006 and having known her since that date. Down through the years the witness recalled a number of allegations made by the claimant in relation to other employees. He regularly requested she put her complaints in writing in a formal manner as required by company procedure in order that he could investigate the allegations. No formal complaint followed. The respondent received a medical report from the claimant’s doctor and the witness was of the opinion that the claimant needed to be kept in a stress free environment at work. His actions were to ensure all employees were protected. A meeting was arranged for 7 April 2010 and the claimant highlighted other issues and made allegations against colleagues. The claimant was unable to give specific times and dates of incidents. The company standard operations procedure required specific details in order that issues could be investigated. He expressed concern for the claimant at that time. At a further meeting on the 12 April 2010 the claimant indicated she did not wish to make any formal complaint. He understood this to mean that all complaints including bullying and harassment allegations were all withdrawn. He conducted an investigation into a quality issue which he later admitted was something he had raised with the claimant. Much time was given to the claimant and when he met with her informally on the floor he recalled she said things hadn’t changed for her or improved. A letter dated 17 June 2010 was open in evidence and it set out the allegations made by the claimant over the period 2007 to 2010. The letter also advised the claimant of her suspension on full pay which the witness believed was for the claimant’s own benefit. The claimant was offered counselling services by way of a letter dated 30 June 2010. Following a disciplinary meeting which was held on the 19 July the claimant was dismissed on the 23 July 2010. The reason the claimant was dismissed was that over a period of three years she had made malicious complaints about other employees and failed to follow company procedure. Her behaviour was considered gross misconduct. The decision to dismiss was taken by the director of HR. The witness denied that referencing the claimant’s P45 in the letter of dismissal was in any way predetermining any appeal which would take place. The claimant did appeal her dismissal and the decision was upheld in late August 2010.
The claimant gave evidence. She confirmed that shehad no disciplinary issues on her record. She experienced some difficulty with an employee whom she herself approached and asked her to stop bullying her. Another employee had regular disputes with colleagues and the claimant was asked to support a complaint to management. She recalled an informal discussion with ER at which she told him she wished to change shift as she was being bullied by a co-worker. She did not want to make a formal complaint and understood that the company policy allowed an employee to designate someone to speak to the perpetrator. ER was insisting she make a formal complaint to her supervisor. In July 2006 she was forced to make a formal complaint as the bullying continued. The complaint was investigated and the perpetrator made an insincere apology. In May 2008 she was moved to a different department within the company and again experienced bullying. She approached the individual concerned who in turn reported the matter to the supervisor. Following a meeting which was arranged with the supervisor and attended by the claimant and the perpetrator they were both told to get on with the work.
A later incident with the same co-worker involved the claimant getting splashed with boiling water. That incident was reported in an accident report.
A period of stress related sick leave followed from 28 May to the 15 July 2008. During that period she received up to eight telephone calls from various managers including ER. ER arranged a meeting with the claimant in June 2008 and later informed her that following an investigation he found no evidence of bullying.
In 2009 it was a usual occurrence that employees argued about which radio station would be on and one night the claimant was drawn into the argument. The claimant believes that upsetting comments made by a co-worker led her to have a car accident that night. Other employees were also exposed to regular bullying by the individual and the claimant was again asked as part of a group to report the behaviour to management. Later a verbal apology followed from the perpetrator. Soon after the claimant returned from a period of sick leave in January 2010 she was requested to attend a meeting with ER. It was at that meeting she was pressed to comment on quality issues. The claimant believed that the quality issue was well known to management. She later learned that the conversation was discussed with the supervisor although it had been suggested to her that an investigation would be conducted on the quiet without any reference to her comments. The claimant denied making any immoral or malicious complaints during the period of her employment. She could not understand why she was first suspended and later dismissed and never received any justification for the actions of the respondent. She had only once made an official complaint and that was upheld. She was frequently summoned to meetings in front of other employees which caused her further difficulty and embarrassment. She never attempted to undermine other employees and believes her dismissal was linked to the fact that she was close to a permanent contract of employment. She also confirmed that she had issued proceedings in the High Court against her employer and she had included a claim for loss of earnings as part of the relief sought in those proceedings.
Determination
This is an appeal by the claimant against the recommendation of a Rights Commissioner. The claimant’s appeal was brought on the grounds that the Rights Commissioner failed to address her claim for re-instatement.
The matter proceeded before the Tribunal by way of a de novo hearing and both parties were ably represented. The issue of the unfairness, or otherwise, of the dismissal was a matter which had to be determined by the Tribunal. The law requires the Tribunal to determine whether, or not, the respondent’s decision to dismiss was reasonable having regard to the nature and extent of the enquiry which was carried out by the respondent, and the conclusion which was reached by the respondent following this enquiry. While, it could well be the case that the Tribunal may have come to a different conclusion, this is not the issue. The matter for the Tribunal to decide is whether, or not, the decision to dismiss could be labelled as an unreasonable one in light of the facts gathered.
Having carefully considered the contested evidence, together with the submissions advanced by each of the legal representatives, the Tribunal finds in favour of the respondent. In the claimant’s contract of employment, among the examples of what the respondent considers to be gross misconduct is immoral conduct. The respondent completed a full investigation and had concluded that in the past number of years the claimant had made various allegations against other employees which she had failed to formalise but continued to raise. Following a disciplinary hearing, the respondent considered that in light of the seriousness of the claimant’s conduct which involved making immoral and malicious complaints, it had no alternative but to dismiss her for gross misconduct. In all of the circumstances, the Tribunal cannot accept the claimant’s contention that this was unreasonable.
The claimant also raised certain questions about the procedural fairness of the investigation and the subsequent disciplinary proceedings. The Tribunal has examined each of these questions. It was argued that the mention of a P45 in the letter dated 19th July, 2010 prejudiced the claimant’s appeal as it could be construed that the claimant’s dismissal had already been determined. The Tribunal does not accept this argument as the reference to a P45 was clearly stated as being dependent on the outcome of the appeal. There was also a question raised about the fact that the claimant was suspended prior to the investigation. The Tribunal accepts the respondent’s evidence that this decision was made in the interest of the claimant’s health and welfare. Finally, in relation to the HR manager’s earlier involvement in an investigation in 2006, the Tribunal cannot hold that this amounts to procedural unfairness. Given his position as HR manger he was the person within the company, with responsibility for dealing with these issues. Various other issues were raised but the Tribunal is satisfied that that the respondent followed fair procedures during the investigation and the disciplinary process.
Accordingly, the Tribunal finds that the dismissal was not unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails. The recommendation of the Rights Commissioner is therefore upset.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)