ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002046

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 06/05/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

1. The Complainant was employed by the Respondent as a sales manager/sales executive.
2. There was a dispute as to his start date regarding a period where the Complainant worked for the Respondent in a voluntary / unpaid capacity. In any event, the Complainant had more than the twelve months service to bring a claim under the Unfair Dismissals Act.
3. The Complainant was a personal friend of the CEO of the Respondent. The parties had known each other for fifteen years. The CEO was godfather to one of his children.
4. The business was relatively new having commenced in 2013. The CEO worked in the business with the Complainant and other employees. The other two directors of the company did not work on a daily basis for the company.
5. On the 16^th of October 2015 there was an acrimonious incident between the Complainant and the CEO at the office. There was a dispute between the parties as to what actually happened. There was no witness to the incident.
6. On the 20^th of October 2015 the Complainant and the CEO the Respondent met in at a local hotel. There was a further acrimonious exchange between the parties.
7. On the 21^st of October 2015 the Complainant was working away from the office.
8. On the 22^nd of October 2015 the Complainant was at home between 12.30 and 1.30pm. He heard a letter being delivered to his letter box. He went to the door and noted that the CEO had hand delivered the letter to him. The Complainant felt that this was a provocative act by the CEO. There was further acrimonious interaction between the parties. The Complainant admitted that he had words with the CEO of the Respondent.
9. The letter of suspension dated the 21^st of October 2015 referred to “continued erratic behaviour and poor conduct at work”. It suspended the Complainant until the 30^th of October 2015 on full pay.
10. On the 30^th of October 2015 the Complainant received a letter dated the 29^th of October 2015 from the Respondent regarding his suspension. The letter set out that he remained suspended with pay and that the reason for the suspension is that he was alleged to have:

-          persistent failure to reach job requirements

-          Acting in a physically threatening manner towards the CEO

-          Threatening to both destroy the Respondent and all the directors of the Respondent

-          Acting in an aggressive manner towards the CEO

-          Using physical gestures that were designed to intimidate the CEO

1. The letter went on to advise that a full investigation was commencing and they had engaged a named barrister to carry out the investigation on their behalf. The letter confirmed that the investigation and disciplinary process would be conducted under

“the auspices of the attached disciplinary policy”.

1. The disciplinary procedure was attached. This was the first time that the Complainant had received same. It was a 10 page document. On page 1 it stated that

“the Respondent reserved the right to depart from the precise requirements of the procedure where it is deemed reasonable to do so and where the resulting treatment is deemed to be fair”.

1. In relation to procedures, the policy stated that

“the general principles of natural justice and fair procedures will be upheld at all times”.

1. The policy went on to set out disciplinary meeting and it stated

“disciplinary meetings will be held with the employee so that the employee can respond. Management will never give a warning or decide on the level of warning until AFTER this meeting takes place and the employee is given a fair hearing under the principles of natural justice”. (No emphasis added)

The employee will be provided with a copy of all documents, investigatory reports and witnessed statements (if applicable) in advance of the disciplinary hearing.

The disciplinary officer will consider all of the information presented at the hearing.

The employee will be given the opportunity to respond and to state their case.

1. On page 7 of the policy it set out stage 4: dismissals:

“If the incidents are so serious and following an investigation and disciplinary hearing then the employer may decide to dismiss the employee. As part of the process outlined above, the employee will be provided with every opportunity to state their case.

Dependent on the seriousness of the matter, the employer may determine to dismiss the employee. In this case the employer will pay any outstanding wages due but will not pay a notice period. The dismissal will be issued in writing and will include the internal appeals process that the employee should follow”.

1. The policy went on to give a list (not exhaustive) of misconduct and gross misconduct.
2. On page 9 the employee’s rights were set out. There was reference to the investigation and/or disciplinary process, to be given an opportunity to present their case before a decision regarding to be imposed is reached. It also set out the right to be informed and encouraged to use the right of appeal. The policy went on to define the appeal process.

1. The Complainant met with Respondent’s appointed investigator. The meeting took place on the 4^th of November 2015 and lasted for four hours.

1. The Complainant received the minutes of the meeting with the investigator.

1. The next correspondence from the Respondent was a letter dated the 6^th of November 2015. This letter set out:

“Thank you for attending the investigation meeting on Wednesday the 4^th of November 2015. As discussed with you in line with our discipline policy we requested that the investigation meeting would be put to one side and that we engage with you in a facilitated session to which you agreed.

Having engaged in this facilitated session we were unable to achieve an agreed resolution. We, the Directors, have considered the matter and are of the opinion that your threatening and abusive behaviour and conduct is untenable and amounts to gross misconduct which warrants that you are summarily dismissed.

Therefore your employment is terminated with immediate effect from the 6^th of November 2015. This situation is viewed as gross misconduct and therefore pay in lieu of notice is not applicable. You will be paid up today 6^th of November 2015 and any annual leave due to you will be paid to you and your P45 issued to you in due course.

Yours sincerely.”

1. There was no disciplinary hearing or right to appeal.
2. As regards his efforts to mitigate his losses, the Complainant has at all times been actively seeking employment. He wished to start up a new business and has been in contact with the local LEO office. He also provided two further letters of rejection showing his unsuccessful attempts at obtaining employment.

Respondent’s Submission and Presentation:

2. The Respondent is an online ticketing service.
3. It initially engaged as a sales executive and then as a sales manager.
4. The Respondent set out that the Complainant was unskilled as regards computer skills and that he had to be trained on internet usage, social media and online sales.
5. The Respondent claimed that the Complainant’s deficiencies in IT caused his underperformance. He claimed that he failed to meet sales targets and maintain correct records.
6. The CEO was a friend of the Complainant and evidence was given that his poor performance was in connection with the Complainant’s extremely difficult marriage breakup.
7. The CEO felt that the complainant was on prescription medication or drinking heavily. He was not making sense. He was very erratic or illogical.
8. The Complainants performance continued to fail and matters came to a head on the 16^th of October 2015 when the CEO requested the Complainant to explain why he was late for work. During the course of this conversation the Complainant became violent and began to threaten the CEO personally, verbally and physically which resulted in the CEO being in fear of imminent physical attack.
9. The CEO alleged that the Complainant followed him and continued the tirade of threats and abuse.
10. On the following Tuesday 20^th of October 2015 the CEO suggested a meeting between the parties to resolve the matter. The meeting took place at a local hotel. The CEO claimed that the Complainant’s behaviour was again unreasonable and he had no option but to terminate the meeting and leave. As he left the hotel and returned to his car he was followed by the Complainant who got into the car and refused to leave. This put the CEO in fear of his personal safety. The Complainant left the car only following an intervention by phone by a director of the Respondent.
11. As regards the events of the 22^nd of October 2015, the CEO gave evidence that after putting the suspension letter through the Complainant’s letterbox, he came running out of his house and chased the CEO to his car shouting that he was going to kill him. The Complainant’s partner followed him out of the house into the street and attempted to restrain the Complainant and pulling him away from the CEO. The CEO said that Complainant issued a litany of choice words along the lines of he would kill him; he would get him or destroy him. The Complainant made a shooting action putting his fingers to his head.
12. The CEO attended at the local Garda station and made a complaint of assault.
13. The Respondent appointed a HR consultant and an independent investigator to investigate the matter.
14. On the 30^th of October 2015 the Complainant was invited to attend a meeting with the investigator. This meeting took place on the 4^th of November 2015 for what the Respondent described as a “case management meeting where the purpose of the process was to explain to the Complainant together with the disciplinary policy that would be relied on”.
15. A further meeting was scheduled which was to be described as the investigation meeting. This meeting never took place.
16. The company directors met on the 4^th of November 2015. They discussed the meeting that had taken place between the Complainant and the investigator, the CEO’s attempt to resolve the matter in the local hotel and the attempt to hand deliver the letter of suspension to the Complainant. The directors also carried out a google search against the Complainant and discovered an Irish Times article dating back to 29^th June 1999 that shocked them and put them in immediate fear. Out of concern for the safety of the staff and directors of the company, they made the decision to proceed to dismiss the Complainant immediately and short circuit the investigation process which hadn’t commenced at that point.
17. The following day (5^th November 2015) the investigator was contacted and the directors informed him of the decision that had been taken and asked him to communicate the letter to dismiss the Complainant once it had been drafted to the Complainant. The directors felt that it was appropriate that this investigator being an independent third party would deliver the letter of dismissal to avoid any potential escalation and confrontation of the situation.
18. On the following day the 6^th of November 2015 the investigator handed Mr. Dolan the letter of dismissal and closed the meeting.
19. The Respondent respectfully submitted that the dismissal was fair in all the circumstances. It was agreed that there was no mention of the right of appeal to the Complainant.

Decision:

3. Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
4. The Respondent believed that it could dismiss the Complainant summarily, without a disciplinary meeting if the circumstances warranted it.
5. It would appear there was some sort of a mediation process engaged with and when this broke down the disciplinary process commenced again.
6. The meeting of the 4^th of November 2015 was described as an introduction meeting.
7. Section 6 of the Unfair Dismissals Act 1977 sets out:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

3. Section 7 sets out

Without prejudice to the generality of subsection (1) of this section in determining if a dismissal is an unfair dismissal, regard may be had……. as the case may be, considers it appropriated to do so:

1. to the reasonableness or otherwise of the conduct (whether by act or admission) of the employer in relation to the dismissal and,
2. to the extent (if any) of the compliance or failure to comply by the employer in relation to the employee with the procedure referred to in Section 14(1) of this Act or with the provisions of any code of practise referred to in paragraph (d)

(inserted by the Unfair Dismissals (Amendment) Act 1993).

3. The insertion of subsection 7 into the Act requires that an employer establish not only that it had substantial grounds justifying dismissal but also that it followed fair and proper procedures before dismissal.
4. An employee is entitled to fair procedures. This is a constitutional right. At a minimum an employee is entitled to be informed of the charges against him and to be given an opportunity to answer them and to make submissions. The maxim audi alterem partem (hear the other side) applies.
5. The procedures engaged by the employer must have transparency, clarity and a clear structure. On paper, the Respondents disciplinary procedure was such.
6. In its submission the Respondent stated that while underperformance was one of the matters to be considered “in the anticipated investigation, it had no bearing on the decision to dismiss him. If the investigation had proceeded it would have been relevant….”
7. Dunne –v-Harrington UD 166/1979 set out that an employer may investigate an issue with an employee and relies on the reports of others. If he does so without confronting the accused employee with the contents of same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting evidence to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice - that the other party should be heard.
8. The Code of Practice on Grievance and Disciplinary procedures (SI 146 of 2000) provides guidance to employers on the general principals which apply in the operation of grievance and disciplinary procedures. Good practice entails a number of stages in handling a disciplinary case.
9. The Respondent did have a well written disciplinary procedure; however it didn’t follow the process set out in that procedure.
10. No disciplinary meeting was heard. No investigation was carried out. The decision makers relied solely on the information provided to them by the CEO. The decision makers took into account information which they obtained themselves from the internet without notifying the Complainant of it.
11. The Respondent breached its own disciplinary procedure in relation to advising the Complainant of the outcome of their decision.
12. Therefore I find that the dismissal was unfair.

Redress:

4. The Complainant has been out of work for thirty four weeks to the date of this decision. I am not satisfied that the Complainant is doing everything in his power to minimise his losses. The two letters of refusal that he submitted were from friends/work colleagues.
5. Section 7 of the Unfair Dismissals Act 1977 sets out redress for unfair dismissal. Taking into account the circumstances of the case, I do not believe that reinstatement or reengagement would be suitable in the circumstances.
6. The Complainant is entitled to an order for financial loss, as is just and equitable having regard to all of the circumstances.
7. Section 7(2) requires me to have regard to the extent to:

a)      The extent (if any) to which the financial loss is attributable to an act, omission or conduct on behalf of the employer,

b)      The extend of which the said financial loss was attributable to act, omission or conduct on behalf of the employee,

c)       The measures if any adopted by the employee or as the case may be his failure to adopt measures to mitigate the loss aforesaid.

4. I calculate that the Complainant received an average gross weekly wage of €430.89 per week for the year prior to his dismissal.
5. In considering the circumstances I am awarding the Complainant twenty three weeks loss of wages which amounts to €9,910.47. A proactive approach to finding work is required by the Complainant. I have reduced the award by one third.

5. The Complainant also brought a case that he did not receive a statement in writing of his terms of employment under the Terms of Employment (Information) Act 1994. The Respondent submitted that the Complainant requested this information would not be furnished to him for the reason of his family law dispute. The Respondent admitted that the terms of employment were not furnished to the Complainant. I am awarding the Complainant the sum of €800.00 for failure to comply with this legislation.
6. The Complainant brought a claim in relation to the Industrial Relations Acts. Any decision I make in this regard is a recommendation only and cannot be enforced against the Respondent. I have taken into account this claim in my decision under the Unfair Dismissals Acts.

Dated:   26^th July 2016