UD1436/2014, MN747/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1436/2014

MN747/2014

CLAIM(S) OF:                                                                                 

Liam Whelan               -claimant                                                        

Against

-respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. N. Russell

Members:     Mr. J. Browne

                     Ms. S. Kelly

heard this claim at Waterford on 6th January 2016, 4th April & 5th April 2016, 21st June & 22nd June 2016 and 19th September & 20th September 2016

Representation:

Claimant:         Ms. Ger Malone, SIPTU, Liberty Hall, Eden Quay, Dublin 1

Respondent:    Mr. Tony Kerr B.L. instructed by Ms. Anne Nagle, Doyle, Solicitors, 31 South Bank, Crosses Green, Cork

Background:

Dismissal as a fact was not in dispute.

The claimant was employed as a driver and programme assistant with the respondent from January 2005 to August 2014.

The claimant was suspended with pay in April 2014 in relation to concerns regarding his performance. An investigation commenced and meetings were held on the 28^th April and 30^th May 2014. There were eight terms of reference for the investigation.

The investigators were satisfied that disciplinary action was warranted and a disciplinary meeting was convened on the 22^nd July 2014. It was found that four of the eight matters warranted disciplinary actions and that dismissal was the appropriate sanction.

The claimant was ultimately dismissed by letter dated 29^th July 2014. He appealed this decision on seven grounds but the decision to dismiss was upheld.

Summary of evidence:

The claimant gave evidence of the duties associated with his role and he also described a number of activities and excursions that he organised and developed for the respondent’s service-users.

It was the claimant’s evidence that he was informed by the Area Manager by telephone on 3^rd April 2014 that he was suspended. The claimant was shocked and asked for the reasons for the suspension but they were not provided to him. On Monday, 7^th April the claimant subsequently received a letter dated 3^rd April 2014 from the Area Manager informing him that his suspension with pay arose due to a number of concerns that had arisen in relation to his performance and conduct in the role of Driver/Programme Assistant. These matters had been reported to the Area Manager by the claimant’s line manager (the Service Co-Ordinator). As per the respondent’s disciplinary policy and procedure an investigation was conducted and the terms of reference were provided to the claimant in advance and he was advised that he could be accompanied by a representative of his choice.

The Director of Human Resources gave evidence of the respondent’s disciplinary policy. External trainers delivered a specialised programme on the respondent’s policies and procedures including how to conduct investigations. During cross-examination the witness confirmed that he received a letter from the claimant during 2013 regarding a Performance Improvement plan (PIP). The witness did not respond to the claimant as he felt the matter was a local management issue and he referred the matter to local management. As per policy the human resources department does not become involved in local disputes. If the claimant’s manager dismissed his concerns regarding the PIP it was open to the claimant to escalate the matter to the Area Manager through the grievance procedure. The investigation team did not discuss with the Director the issues raised by the claimant about the PIP.

A National Development Officer (DK) gave evidence that he was appointed to conduct the investigation with the Service Support Officer. The witness had received the training about how to conduct investigations. The terms of reference for the investigation were formulated by the human resources department. The first investigation meeting was held on the 28^th April 2014 and it gave the claimant an opportunity to respond to the terms of reference.

The terms of reference are summarised as follows:

• It was alleged that the claimant failed to follow a direct instruction from his line manager including failing to sign the PIP
• It was alleged that the claimant made a series of unauthorised stops
• It was alleged that the claimant drove the respondent’s bus while eating food
• It was alleged that the claimant undermined the dignity and respect of staff and service users
• It was alleged that the claimant behaved in a manner which intimidated staff and service users
• It was alleged that the claimant failed to complete the tasks associated with his role to the standards required
• It was alleged that the claimant failed to follow the respondent’s policies and procedures including regularly smoking on the respondent’s bus
• It was alleged that the claimant had been discussing work related grievances openly despite his line manager’s instruction not to discuss the PIP with      other staff

At the investigation meeting the claimant and his representative raised a number of issues about the allegations including that the terms of reference were vague. At that point the investigators did not know who had made the allegations.

Following this meeting with the claimant the investigation team interviewed a number of staff members. The claimant’s line manager told the investigators that the complaint against the claimant had come about due to issues that were brought to her attention. The investigators took this at face value. The line manager provided names of people who could clarify details of the allegations and the investigators met with a number of service-users. A lot of weight was given to the fact that service-users came forward. The witness did not get any sense of an organised agenda against the claimant. The witness stated that he did not get a sense of “trumped up” charges as alleged by the claimant’s representative.

The witness also received a copy of the PIP. The PIP had concluded by the time of the investigation. It was clear that the PIP was unsigned by the claimant.

It was the claimant’s evidence that at the investigation meeting he raised the fact that he had not been told the reasons for his suspension until the 7^th April 2014 and that the terms of reference were vague. The claimant stated that he had always followed instructions and he needed more detail about the allegations.

In relation to his failure to sign the PIP the claimant stated that one day his line manager handed him an envelope containing the PIP document which outlined 14 issues. The claimant responded to the issues in writing and tried to provide this response to his line manager. However, she told him that her decision was final and that he had no right of response. He subsequently wrote to the Director of Human Resources about the PIP. The claimant ultimately engaged with the PIP but he did not sign the PIP document as he did not agree with the PIP. He was not informed that this was a disciplinary matter.

At the investigation meeting the claimant raised the fact that his line manager had never carried out an appraisal. He felt an appraisal could have “ironed out” a lot of the issues raised in the PIP. The claimant had completed his part of an appraisal form and provided it to his line manager but his line manager wanted to conduct the appraisal without completing her part of the form. When the claimant asked her to complete the form she “threw it back” at him.

The claimant outlined in detail his responses at the first and second investigation meetings. In relation to the allegation of smoking on the respondent’s bus the claimant admitted that he had done so. He recalled the day in question and that he was feeling stressed when his colleague suggested he have a cigarette. They were the only two people on the bus at the time and she reassured him that she would not tell anyone. Without his knowledge his colleague took a photograph of him smoking and colluded with his manager who used it to dismiss him.

The investigation team’s meetings with staff and service-users took place during May 2014. The meeting records were provided to the claimant. A further investigation meeting was conducted on the 30^th May 2014 to allow the claimant to respond further to the allegations contained within the terms of reference. Additional information in relation to the allegations was also provided to the claimant.

DK gave evidence that the investigation team did not get the sense that the claimant was being entrapped. They found the witness statements to be well-measured and well thought out. A request was received from the claimant’s representative to cross-examine witnesses but the respondent’s policy does not permit this. The investigation team felt they had sufficient information to conclude the investigation.

The claimant’s representative wrote on the 20^th June 2014 stating inter alia that the credibility of the investigation was so seriously compromised that any report formulated from it could not be relied upon and a request was made for a third party impartial investigator to recommence the investigation. The letter also contained the claimant’s responses having received the additional documentation. The letter concluded by alleging that the claimant’s line manager was colluding with a staff member and a service user to bring about the claimant’s dismissal. The letter also alleged collusion between the investigators and the claimant’s line manager.

The investigation team proceeded with issuing their findings to the claimant by letter dated 8^th July 2014. The outcome noted the representations made in respect of the process itself but the investigation team were satisfied that the investigation was conducted in a fair and transparent manner and free from bias. The investigators found that some of the concerns raised about the claimant’s performance were warranted. Given the serious nature of the issues the investigation team recommended the disciplinary process as the appropriate course of action.

During cross-examination DK accepted that he had undertaken to raise issues with the manner in which the claimant was suspended with the human resources department but he did not recall doing so. It was put to the witness that the charges were “trumped up” and that this concern had been raised during the investigation and that further detail was sought in relation to alleged unauthorised stops and where the complaints had originated from. The witness replied that on the balance of probabilities they had concluded that the claimant had made unauthorised stops. He confirmed that it was put to the claimant’s line manager why she had not raised the matters with the claimant at the time they had occurred. The witness also accepted that there were questions raised by the claimant that were not put to his line manager. It was also put to the witness that the claimant had asked for his objection letter to the PIP to be included as part of the investigation process and the witness recalled discussing that issue with the human resources department.

It was the claimant’s evidence that when he received the investigation report he felt that the matters he had raised during the process had not been taken into account and he felt the investigation was unfair and one-sided.

A disciplinary process commenced and was conducted by another National Development Officer (CD) and the Human Resources Team Leader on the 22^th July 2014. CD gave evidence that she is a member of senior management and has previous experience of investigations and other human resources issues. It is not part of the respondent’s policy to allow for the cross-examination of witnesses. The disciplinary team received the investigation report and met the claimant and his representative on the 22^nd July 2014. Her colleague took notes while the witness asked questions of the claimant however they were both decision-makers. In relation to the concern raised by the claimant’s representative about entrapment, the witness found the photograph of the claimant smoking to be the biggest indicator of this but the fact remained that the claimant had smoked on the respondent’s bus. The witness found no evidence of collusion but she was conscious not to let “anything” with the line manager’s name on it affect her decision.

The witness stated that as per the respondent’s policy the employee’s file was not examined until after the disciplinary matter had been decided as stated clearly in the respondent’s disciplinary policy. The witness and her colleague examined the findings of the investigation team and reached a unanimous decision. The investigators had recommended eight matters should be addressed under the disciplinary procedure. The disciplinary team however concluded that only four of the eight issues warranted disciplinary action:

• Failure to sign documentation in relation to a performance improvement plan
• Unauthorised stops
• Failure to complete tasks to a required standard
• Smoking on the respondent’s bus

The disciplinary team found that the duty of trust and confidence was irreparably damaged and that dismissal was the appropriate sanction. The respondent’s policy sets out a number of disciplinary sanctions that may be applied. In considering what sanction to apply the disciplinary team considered a number of factors:

• The claimant’s failure to comply with a reasonable instruction to sign the PIP
• The claimant’s apparent lack of respect for service users, colleagues and the respondent in the context of unauthorised stops and smoking on the      respondent’s bus
• The fact that the respondent delivers services to vulnerable people
• The fact that there had been clear attempts to support the claimant in meeting the standards of his role
• The claimant’s previous employment record

Having read the claimant's file CD was aware that the claimant had been the subject of a previous disciplinary process. The disciplinary team read his file when they linked in with the human resource representative about the disciplinary process. The disciplinary team asked to see the claimant’s file which they reviewed in detail. They were aware from this that unauthorised stops had featured in a previous disciplinary matter faced by the claimant. The claimant had been issued with a final written warning for 12 months which was subsequently reduced to six months on appeal and which had since expired.

The witness stated that in weighing up the sanction of final written warning or dismissal the fact of the previous disciplinary matter contributed to the decision to dismiss as well the serious nature of the issues.   It indicated to the disciplinary team that the clamant was not performing as the respondent would have liked. The decision to dismiss was not taken lightly but the respondent must have trustworthy staff given the nature of its service.

During cross-examination it was put to the witness that the claimant raised a number of issues throughout the disciplinary process that were not addressed including concerns about how the investigation was conducted. The witness replied that she was satisfied with the investigation and she did not give weight to the fact that the claimant was not allowed to questions witnesses during the investigation.

It was put to the witness that the investigators should not have included in the handover the minutes of the meeting with the claimant’s line manager wherein she stated that that she would find her own position impossible should the claimant be returned to his position. The witness replied that it had no bearing on the decision reached by the disciplinary team as to do so would have been unfair to the claimant.

During cross-examination CD stated that a sanction short of dismissal was considered but she could not see how matters would improve in the future having looked at the claimant’s file and given the previous disciplinary matter on his file. It was put to the witness that the claimant had a clear record at that time and the witness accepted this but stated that “here we were again two years down the line again with a number of things.” It was put to the witness that the claimant was given an assurance at the disciplinary meeting that nothing on his record would be taken into account as the claimant wanted to address certain matters if his previous disciplinary record was being examined. The witness replied that it was in the minutes that the claimant was informed that if a disciplinary sanction was to be imposed the disciplinary team would be entitled to see his full employment record in the context of deciding the appropriate level of sanction. It was put to the witness that the minutes were not agreed by the claimant. The witness added that it was also set out in the respondent’s disciplinary policy that an employee’s record could be considered in the context of determining a sanction. It was put to the witness that the policy stated that the employee’s “current and relevant disciplinary record” could be considered but that a spent warning should not have been considered. The witness replied that she had understood the claimant’s file could be examined in the manner that it had and that the human resources representative had advised on the procedural aspects of the process and had allowed the disciplinary team to examine the claimant’s file. The witness reiterated in re-examination that she had reached the decision on appropriate sanction before seeing the claimant’s file.

The claimant gave evidence of the responses that he had provided at the disciplinary meeting. He also outlined the mitigating circumstances he had raised including his age. He had asked for his file to be looked at by the disciplinary team as he knew he had a clean record. When he received the outcome of the disciplinary process he did not agree with its findings for reasons he outlined to the Tribunal. He found it difficult to believe that the charge against him in relation to the PIP was upheld. He reiterated that he was not informed that failure to sign the PIP was a disciplinary matter.

The claimant appealed the decision to dismiss him to the National Director of Community Supports. The claimant appealed on the following seven grounds:

• That he was denied his constitutional rights to fair and proper procedures throughout the process
• The principles of natural justice were abandoned
• The decision to dismiss was taken before any formal process commenced
• That his requests, responses and representations were disregarded throughout the process
• There was a complete absence of impartiality throughout
• The grounds for dismissal were not justifiable grounds and the mitigating factors were not taken into account.
• Being treated as if he had no rights

The National Director of Community Supports gave evidence that he received the file containing everything up until that point in time and he reviewed the documentation on multiple occasions. The appeal hearing was conducted on the 29^th August 2014. He did not discuss the appeal with either the investigation or the disciplinary team. As per the respondent’s procedures an employee has the right to appeal any disciplinary sanction imposed. The witness stated that the purpose of an appeal is to look at the original decision to see if due process was followed and whether or not the decision was appropriate to the “offence”. An appeal is not about re-running the investigation but about examining the original decision in light of the grounds of appeal. In this instance the grounds of appeal surrounded the procedures and processes.

The witness provided an opportunity for further information after the appeal hearing. There were no issues raised with him concerning the accuracy of the minutes of the disciplinary meeting. The witness stated that it was evident there were some difficulties in the relationship between the claimant and his line manager but if the claimant had an issue with the PIP it was open to him to escalate the matter further.

The witness considered the mitigating circumstances, the manner in which the investigation was conducted and the sanction imposed. He outlined that the respondent receives funding and is audited by the funding body in relation to certain procedures and policies. The witness noted that when the investigation team met one of the service users he had made a statement that the claimant asked him if he could smoke on the bus on a weekly basis. The witness also found that it was both appropriate and necessary for the service user to have been told that the claimant was in a disciplinary process as part of the investigative process.

The witness made a conscious decision not to look at the claimant’s file and he heard the appeal without an awareness of any previous issues. He did look at the file afterwards as the disciplinary team’s outcome letter to the claimant referred to his previous employment record. Due to this the witness did look at the claimant’s file as part of his determination. He considered that there was consistency with the previous written warning and a repetition of the actions that gave rise to the current matter and the previous matter. As the previous warning was spent he judged the matter at hand on its own merits although he was conscious of the repetition factor.

The outcome of the appeal disallowed the seven grounds of appeal and upheld the decision to dismiss the claimant. The witness stated that the disciplinary process adhered to the respondent’s policy and therefore must be found fair. He did consider the claimant’s letter objecting to the PIP but he was satisfied that the claimant received a response referring him onwards.

In relation to upholding the sanction the witness stated that given the trust and confidence required by the respondent and the four issues he felt it was appropriate to uphold the sanction to dismiss. He did not get a sense of ownership from the claimant nor did he sense that the claimant knew it was wrong to smoke on the respondent’s bus. For the claimant it was more about the fact that he felt he had been “set up” . The witness felt there was a lack of acceptance on the part of the claimant.

It was the claimant’s evidence that he was shocked to find all matters against him had been upheld on appeal and that the issues he had raised had not been investigated.

During cross-examination it was put to the claimant that he had left the bus carrying the service-users unaccompanied. The claimant said he only walked 20 yards to collect his post while his colleague was on the bus and he refuted ever leaving service users on an unattended bus. It was put to the claimant that his colleague had made a statement that service-users could be left unattended by the claimant. The claimant refuted this and stated that he had not been given the opportunity to cross-examine his colleague. In reply to further questioning the claimant stated it was a “slip” on his part that he had not told the investigation and disciplinary team that he had never left the bus unattended.

It was put to the claimant that he was informed by the human resources department that queries regarding the PIP should be addressed to his line manager or the Area Manager. The claimant replied that he had expected human resources to intervene in the matter when he wrote to them.

It was also put to the claimant that the Area Manager informed him by letter in October 2013 that failure to engage with in the PIP process would be viewed seriously. The claimant stated that he had disagreed with the process from the very start. In reply to questions from the Tribunal the claimant confirmed that when the PIP meetings had concluded he was given a letter from his line manager to the effect that he had co-operated with the PIP but he was not informed by his line manager that the failure to sign the PIP document was a disciplinary matter.

The claimant stated that he was aware of the respondent’s smoking policy and he was adamant that he had only smoked on the bus on one occasion which he admitted to.

During cross-examination it was put to the claimant that he was previously the subject of an investigation in relation to an allegation of smelling of alcohol at work, smoking on the respondent’s bus and speaking negatively of two staff members including his line manager. The allegation in relation to smelling of alcohol and smoking on the bus were not upheld but it was found on that occasion that the claimant had openly discussed his grievances with other staff in the workplace. The claimant confirmed this to be the case and stated that he had appealed the warning.

In reply to questions from the Tribunal during his evidence the claimant stated that he had no problems up until the time that AL became his line manager. For the last three years of his employment “everything seemed to be monitored”.

The claimant gave evidence of his financial loss as a result of the dismissal and his efforts to mitigate that loss

Determination:

Having considered the evidence adduced to the Tribunal, the documents submitted and the representations made by and on behalf of the parties, the Tribunal has concluded that, all considered, the investigation carried out by the respondent was fair and reasonable.

However, the Tribunal does have some reservations around the decision-making process which led to the claimant’s dismissal.

The decision-makers found that the claimant had:

• Refused to sign off on his performance improvement plan.
• Made unauthorised stops.
• Failed to complete tasks to the required standard.
• Smoked on his bus.

The Tribunal is satisfied that these were reasonable findings to make.

The claimant did not sign the performance improvement plan document. The Tribunal is of the view that the claimant engaged in the performance improvement process under protest. He had sought to discuss the implementation of the performance improvement plan but did not get a hearing. As this is intended to be a constructive process based on communication between the parties, the Tribunal is of the opinion that the respondent should have engaged more constructively with the claimant around the implementation of the process and failed to do so. The failure to sign the PIP in all of those circumstances did not warrant any disciplinary action on the part of the respondent. Indeed, in her letter to the claimant of the 25^th November 2013, the claimant’s line manager, stated that “X has co-operated with the Service Co-ordinator and has met the required standard in all areas outlined on the Performance Improvement Plan”. She expressed no concern whatsoever at that time around the non-signing of the completed performance improvement plan document.

The claimant did make unauthorised stops though this is a matter that could surely have been addressed in an informal fashion or by way of one of the lesser sanctions. A reasonable employer would have addressed this issue accordingly and would have similarly dealt with any concerns on the claimant’s shortcomings around completion of paperwork and program templates.

The Tribunal was concerned about the claimant smoking on the bus and found the claimant to be less than forthcoming around this issue during the investigative and disciplinary Processes and, indeed, before the Tribunal

It was reasonable for the decision-makers to conclude that the claimant had smoked on more than one occasion on the bus.

The Tribunal is satisfied that the claimant did not appreciate that smoking on the bus could lead to dismissal.

The Tribunal is of the view that the decision-makers did not act reasonably in finding that the non-signing of the performance improvement plan warranted a sanction. The decision-makers were correct in finding that a sanction was warranted around their other findings.

A reasonable employer considering the appropriate sanction would not have opted for dismissal but instead, would have applied a lesser sanction that would have brought home to the claimant the importance of adhering strictly to the respondent’s policies. Indeed, one of the decision-makers accepted on cross-Examination that she had not considered suspension without pay even though it was one of the range of sanctions provided for in the respondent’s disciplinary process.

The Tribunal cannot discount the possibility that the decision-makers were influenced in deciding what sanction to apply by factors that were not relevant.

Specifically, in the Tribunal’s opinion, the investigators incorrectly put before the decision-makers a statement by the claimant’s line manager to the effect that:

“X feels that her own position will be impossible should the claimant be allowed to return to work”.

It was wholly inappropriate that this clear effort to influence the process was put before the decision-makers.

Further, on cross-examination, one of the decision-makers accepted that she had erroneously taken into account a previous “spent” warning given to the claimant. Giving inappropriate weight to this spent warning goes to the very core of the decision to dismiss.

Under the respondent’s policies the decision-makers were entitled to take into account relevant warnings on file that were still extant i.e. current and relevant (the current status quantified by the relevancy). The decision-maker who gave evidence before the Tribunal clearly believed (or understood from the respondent’s HR Department) that she could take into account historic warnings that were around a similar issue or similar issues but were not extant. She was incorrect in this regard and, therefore, one of the fundamentals in her decision-making was compromised as a result.

The Tribunal has also had due regard to the manner in which the claimant conducted himself throughout the process. The Tribunal considers that the claimant was somewhat evasive in the manner in which he engaged with both the investigative and disciplinary processes and, in particular, failed to address at all some of the allegations against him. In so doing, the Tribunal in measuring compensation is inclined to the view that the claimant contributed to the imposition of the sanction of dismissal. However, this does not alter the Tribunal’s finding that the dismissal was inherently unfair. The Tribunal awards the claimant compensation in the sum of €30,000 under the Unfair Dismissals Acts, 1977 to 2007.

In the course of the hearing the Tribunal was informed that the parties had reached a settlement in relation to the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. Accordingly, the claim under these Acts is dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   _______________________

(Sgd.) ________________________

     (CHAIRMAN)