UD821/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD821/2014

APPEAL OF:                                                                                               

Brendan Fitzpatrick          

  - claimant                            

against the recommendation of the Rights Commissioner in the case of:

Bilfinger Real Estate Limited Previous Name HSG Zander Ireland Limited

T/A Bilfinger Ireland Group

 - respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr. D. Mac Carthy S C

Members:        Mr. J. Goulding

                        Mr. P. Trehy

heard this appeal at Dublin on 21st July 2015, 15th October 2015, 16th October 2015, 23 November 2015 and 20 January 2016.

Representation:

Appellant:

Ms Jennifer O’Connell BL instructed by Ms Helena Walsh Solicitor, Gore & Grimes, Solicitors, Cavendish House, Smithfield, Dublin 7

Respondent:

Mr. John Barry, Management Support Services, The Courtyard, Hill Street, Dublin 1

Background:

This case is before the Tribunal by way of an employee appealing a Recommendation of a Rights Commissioner ref: r-136818-ud-13MMG, under the Unfair Dismissals Acts, 1977 to 2007.

The respondent provides security, cleaning and maintenance to clients. The respondent is also a property management service. Their clients are factories, offices, residential and sports facilities. The claimant was involved in the property side and liaised with clients, for example if the client needed cleaners the claimant would source cleaners for the client. The respondent had two property managers and the managing director. Ms O’N was one property manager and the Claimant was the other. AM was the MD. Some issues arose in April 2012 between the two property managers and AM. Mediation ensued circa 24^th April and it was agreed that they would move forward. The Claimant had a difficulty with AM. The Claimant had a meeting with AM to clarify objectives that were agreed at the mediation meeting. The mediation resumed on 21^st June 2012 and the following day the Claimant went out sick on stress related illness until July 2012. In July 2012 the Claimant met with Mr. S, the group executive. The Claimant went out on sick leave with pay until September 2012. The Claimant returned and met with the HR manager. The HR manager had been newly appointed.

At some point in time, just after a meeting with the Claimant, AM was leaving the meeting and she fell and broke her leg.   She was out on leave but continued to work.

At some point in time the Claimant alleged that the AM was favouring someone, with whom she had a personal relationship (this was clarified during the hearing by the Claimant’s representative in that they were not suggesting it was an intimate relationship but that it was a close friendship) for the tenders. This was discussed with the HR manager. The HR manager advised the Claimant that the company had a whistleblowing policy. The Claimant chose the whistleblowing policy.

Some time later the Claimant withdrew the allegation.   The HR mgrss told him that he could not withdraw the allegation because of the seriousness of the allegation. The matter was referred to Mr. S the group executive. The disciplinary hearing was heard by Mr. S, some of the issues were parked by Mr. S.  

The Claimant at a later time re-opened the allegation but he brought no evidence to support his allegation. The claimant also brought a bullying and harassment claim against senior managers.

Mr. S decided that the allegation against AM was not substantiated. He took the view that the allegations against the senior managers were not supported. Mr. S formed the view that the employment relationship had broken down.

There was a changeover of personnel and AM was a new line manager. AM was aggressive in dealing with the Claimant. AM was confrontational. The Claimant received a phone call where AM came down very hard on him.  

There was much debate regarding the Protective Disclosure Act (UK) and the Irish Protected Disclosures Act, which was not in law at the time of the Claimant’s dismissal.

The Tribunal heard evidence from DVB who was a director of the Respondent. The witness was responsible for finance and procurement and HR. He explained what the Respondent Company was originally and that in 2009 there was a change and in 2011 there was a change due to a takeover. Finally in 2013 the company was re-branded. They had separated the various aspects of the business.   The Claimant remained in the real estate area. The facility management was moved to company “BF”. The real estate management revolves around landlords and tenants.   The witness outlined a situation whereby a management company would be set up by those with vested interests. He explained the levies paid by tenants and management companies. Entity BF reports to management companies. The role of real estate manager is critical because of legislative compliance. The witness gave much detailed evidence about the Respondent structure, and the roles within.

The Claimant first came to his notice in March 2012 due to his role in HR.   There was a clash between the Claimant and his line manager. He engaged with the Claimant and he outlined three options open to the Claimant.

At the resumed hearing on the 23 November 2015 JS gave evidence of the claimant reporting to him initially. They had a good working relationship. After the merger JS became CEO and the claimant reported to the newly appointed director (AM). With the new structure it was envisaged that the claimant and AM would liaise with customers. JS was aware of issues between the claimant and AM but was not involved. He was aware of the complaint to HR in March 2012. He received an email from the claimant on the 15 June 2012. This email and his response were opened to the Tribunal. The witness offered to meet the claimant for an informal chat. On the 20 June 2012 a mediation meeting was held and JS attended that meeting late on. The claimant went out on sick leave and annual leave returning on the 16 July 2012. JS held a return to work meeting with the claimant to ensure he was fit to work. The claimant was referred to a medical expert who diagnosed acute stress and recommended therapy.

Ms F was appointed to investigate issues and passed the claimant’s complaint under the whistleblowing legislation to JS. AM was off work at the time following an accident. He met with the claimant on 5 December 2012 in an attempt to establish what the issues were. A second meeting was arranged for the 14 December by which time JS became aware of complaints by the claimant against all of the management team. The claimant did not substantiate the complaints of bullying against the managers but confirmed to JS that he stood over the complaints.

The decision to dismiss the claimant was taken by JS. The letter of dismissal was opened to the Tribunal. The dismissal was as a result of the claimant failing to obtain fire alarm certifications during the period prior to his sick leave and failed to apply for his PRSA licence. Although the claimant had agreed during the mediation process that he would sign his job description documents he had failed to do so.

JS entrusted employees to comply with mandatory licencing and certifications and to delivering services to customers and believed the claimant was failing to carry out those duties. JS was satisfied that supports were given to the claimant however the trust broke down with the claimant’s persistent behaviour.

The witness accepted that the claimant had worked with the company ten years with no previous disciplinary issues and that he had not checked or considered this prior to dismissing the claimant. JS was aware of issues between AM and the claimant and issues around the Christmas market. He could not recall knowing who travelled with AM in an ambulance following an accident. JS did not believe that travelling in an ambulance with someone indicated a close relationship. No evidence of a relationship between AM and (BO’G) was ever given to him. JS accepted that he did not investigate if there was a close relationship between AM and BO’G. He did not believe that there were any reasonable grounds for the claimant to allege that a close relationship existed between AM and BO’G other than to damage AM in a malicious and vindictive manner.

Claimant’s Case

The claimant confirmed he had worked for the respondent for ten years with no disciplinary issues on his file prior to his dismissal. He had no performance related issues on his file. The claimant’s role included the managing of property services and reporting to management boards of clients. AM was appointed in March 2012. No formal or informal system of communicating with AM was put in place and the claimant often found it difficult to contact AM. The claimant’s duties increased without any formal notification of what his greater role was in the company. AM arranged a time management course for the claimant on dates he had already arranged board of management meetings. AM would insist on cancelling arranged meetings at short notice. AM accused the claimant of not sharing information with her and accused him of insubordination.

The claimant gave evidence of having knowledge of a friendship between AM and BO’G. The friendship had come to his knowledge following comments by security officers and other comments he had heard in IFSC.

He had returned to work on the 24 September 2012 and met with AM who told him she wished to give the Christmas market contract to BO’G. At that time he understood negotiations were ongoing between DDA and another contractor (GW). The respondent company acted as agents for the DDA. He did not get an opportunity to inform AM that GW was the preferred contractor for the market and was concerned that a late change to the contract could jeopardise the market.

Later that day when walking by the CHQ building he noticed a crowd had gathered and noticed AM on the ground. He contacted health and safety officer AO’N who had comforted AM who had fallen and broken her leg. An ambulance was also called. BO’G arrived pushed everyone away and held AM’s hand. BO’G accompanied AM in the ambulance.

An email of the 15 October 2012 was opened to the Tribunal. The claimant gave evidence of being overruled by AM on other contracts such as landscaping contractors. He felt he had no other option but to run with B.OG for the market contract.

The claimant opted to submit his complaint under the company’s whistleblowing policy following advice from HR of what he believed to be a conflict of interest in awarding the contract to BO’G.

The claimant gave evidence of being out on sick leave during the period when the PRSA licence application was required. The claimant had no recollection of AM offering to coordinate PRSA applications. He had followed up on his application and had received a letter dated 29 September 2012 confirming that his licence application was received. With regard to signing his job description this issue formed part of the mediation process he had engaged in with the respondent. His role had changed so significantly he had requested the respondent complete a more detailed role profile. He wanted clarity around his role. By the end of September he had signed the job description form.

The claimant had engaged in a mediation process following his complaint of bullying. He had made a complaint against AM as she was not communicating with him and he had learned that one colleague (PB) was instructed not to talk to him.

The claimant’s evidence was that the mediation meetings were conducted by the respondent company management with the panel changing over the course of the process. During the mediation process he was threatened with his job by RC and reported this to SF. He attended the recommended therapy in early September 2012 and believed he had notified the respondent of his appointment.

MN a board member of company which is a client of the respondent company gave evidence. The claimant managed the site at which MN was involved. MN had no performance issues with the claimant and could contact the claimant at any time. The respondent company had experience of managing services in commercial properties and had not previously managed services at residential properties. The claimant however had the knowledge, skills and ability to manage the site on a day to day basis. An issue around book keeping had come to light in the organisation however the claimant was not responsible for book keeping.

GW gave evidence of meeting AM to discuss the Christmas market contract during the Octoberfest. A site walk and plans were discussed. The DDA had suggested he meet with the respondent company however, the claimant was not available for the meeting. He was taken aback by the comments of AM such as “I have the power, all the power”.  

Determination:

This dismissal took place before the passing of the Protected Disclosure Act, which therefore does not apply. However the Respondent is a subsidiary of a British company and the staff handbook includes a “Whistle Blowing Policy”, which is based on corresponding Legislation in the United Kingdom similar to the Irish Protected Disclosures Act, but with several differences. The “Whistle Blowing Policy”, in the staff handbook provides the following:

“WHISTLE BLOWING POLICY

The Whistle blowing Act was introduced to protect workers who disclosed information about dangerous, unethical or criminal behaviour from being dismissed or penalised as a result of such disclosure. HSG Zander is committed to supporting this legislation and to maintaining a good ethical work climate within the organisation. Any forms of malpractice will not be tolerated.

The Company believes that members of staff have a positive and constructive role to play where they wish to express their concerns relating to any of the following in the workplace:

• A criminal offence, including fraud
• A failure to comply with legal obligations
• A danger to health and safety
• Damage to the environment
• That a miscarriage of justice has occurred or is likely to occur
• That information relating to the above examples of illegal and unethical behaviour is being concealed.

This policy sets out the way in which members of staff who have concerns on these areas may raise them in the business.

Principles and Assurances

Members of staff raising concerns will treated seriously. These concerns will be investigated and appropriate feedback may also be given to the member of staff raising the concern_

The Company will use its best endeavours to protect a member of staff who makes a good faith disclosure_. within the procedure from discrimination, victimisation and/or dismissal.

If a member of staff discloses confidential information to a third party without first using the Whistleblowing Policy, other than in accordance with the Act, disciplinary action may be taken against them. Disciplinary action will be taken against a member of staff who makes malicious or vindictive allegations they know to be untrue”

The last sentence quoted above sets a high bar for the company to prove. There is no doubt that the Claimant had a bad working relationship with AM which could have motivated him to make the disclosure, but that would not necessarily mean “malicious or vindictive”.

The sentence adds the words, “allegations they know to be untrue”. Knowledge is not the same as belief. One may have a belief, even a reasonable belief, which is objectively wrong, and even an unreasonable belief does not amount to knowledge that a matter is untrue.

It seems to the Tribunal that the Claimant jumped to conclusions when he saw B’OG attend to AM after she had an accident, and that he was unreasonable in linking this to the matter of the Christmas market. But this does not mean that he knew the allegations to be untrue.

For these reasons the Tribunal finds that the company has not met the standard set by the “Whistle Blowing Policy”.

The letter of dismissal said that the Claimant had “committed and act of gross misconduct in making malicious or vindictive allegations … which have proved to be unfounded”. The Tribunal agrees that they “proved to be unfounded”, but, for the reasons stated above, that does not mean that he knew them to be untrue.

Moreover, the use of the words “gross misconduct”, are inappropriate in this case. In many cases the Tribunal has held that the use of these two words, which suggest criminal or quasi-criminal behaviour, raises the bar for an employer very high, and the Respondent has failed to clear that bar in this case.

In addition to the alleged “Whistle Blowing” incident the Respondent took other matters into account in the dismissal. These included issues relating to a fire alarm, a licence application, a request for a signed job description, certain attendance and performance issues, attendance for therapy and relations with managers other than AM. However all these matters were of a lesser nature, and in the Tribunal’s view, secondary to the “Whistle Blowing”, matter.

For the foregoing reasons the Tribunal finds that the Respondent has failed to show “substantial grounds justifying the dismissal”, under Section 6 of the Act. The dismissal is deemed to be Unfair Dismissals Acts, 1977 to 2007.

Both parties agreed that re-instatement and re-engagement are not appropriate and the Tribunal awards the Claimant in the amount of €30,000.00 as compensation which is considered, “just and equitable having regard to all the circumstances” under Section 7 of the Act.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)