ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000309

Complaint for Resolution:

Date of Adjudication Hearing: 23rd March 2016

Workplace Relations Commission Adjudication Officer: Sean Reilly

Procedure:

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

The Complainant was submitting he had been unfairly dismissed by the Respondent in breach of his rights under the Unfair Dismissals Acts and the Respondent was denying the complaint. He was employed by the Respondent from 8^th October 2001 to 6^th August 2015, his weekly rate of pay was €468.00c gross and €406.00c nett.   The complaint was presented to the WRC on 28^th October 2015.

Summary of Respondent’s Submissions.

The Respondent said they manufacture VMS, sports nutrition and herbal medicinal products.   They said the Complainant was employed by them from 8^th October 2001 until 6^th August 2015, when he was dismissed from his employment with them for reasons of gross misconduct and some other substantial grounds.

The Respondent said that it is their position that a number of individual employees independently lodged separate bullying and/or harassment complaints against the Complainant and the Respondent laid those complaints out as follows.

No. 1. Complaint: On 5^th October 2007, this Employee commenced a period of stress related sick leave, following a confrontation with the Complainant.   On 8^th October this Employee issued correspondence setting out at length her various grievances against the Complainant in which she stated she had been “warned off talking to 2 of my fellow workers (named) and that she ““continuously heard (the Complainant) insult and say horrible things about these people to me and others in the workforce.”   She alleged that her friendship with those 2 employees resulted in the Complainant victimising her and refusing to show her how to complete certain tasks.   She alleged that he spoke negatively to her in front of other employees, was repeatedly critical of her work, purposely isolated her from other employees, demonstrated favouritism and spoke negatively about other employees.   She stated, “I have seen other people, besides myself upset and angry over something he has said or done ……. so I am asking you do we have to wait for someone to end really ruined by his misdeeds?”

Following receipt of this correspondence, the Managing Director (MD) of the Respondent met with this employee to determine her preferred course of action in respect of her complaints and she confirmed that she wished to formally pursue her complaint.

On 10^th October 2007, the Complainant was requested to attend an Investigation Meeting in relation to the issues raised by this Employee; this Meeting took place on 5^th November 2007.   In the course of this Meeting the allegations were put to the Complaint and he simply replied that they were “untrue”.

On 16^th November 2007, the MD again met with this Employee in order to further discuss her complaints against the Complainant and he obtained more specifics.

On 4^th December 2007, a further Investigation Meeting was held with the Complainant in respect of the more specific complaints.   Again the Complainant simply stated that the complaints were “untrue” and he flatly denied that he showed favouritism towards any employee.

On 7^th January 2008 issued a copy of his Decision Report to both parties, in which he found that:

“having considered the allegations and responses I have made the following findings.   There is no substantial evidence to show a regime of bullying of (the named Employee) by (the Complainant). The Respondent said that in light of this finding, no disciplinary sanction was imposed on the Complainant.

No.2. Complaint: On 16^th November 2007 another named Employee wrote to the Respondent alleging bullying and harassment at the hands of the Complainant and 2 other work colleagues.

In the course of this correspondence this Employee alleges that: “from the start (the Complainant) and his 2 colleagues made unfounded remarks, complaints about my work, which were not justified” and she further stated: “(The Complainant) during my working day has made abusive comments on the reason for my marriage breakdown, comments about my parents, which highly hurtful and untrue.”

The Respondent said on 4^th December 2007, these allegations were put to the Complainant and once again he simply outrightly denied the complaints.

On 2^nd January 2008, this Employee’s Solicitor wrote to the Respondent, setting out, at length, this Employee’s allegations of bullying and harassment against the Complainant.

On 7^th January 2008, the MD issued a copy of his Decision Report to both parties, in which he stated: “Having considered the allegations and responses and I have made the following findings.   There is no substantial evidence to show a regime of bullying of (this Employee) by (the Complainant).   The Respondent said that in light of this finding no disciplinary sanction was imposed on the Complainant

No 3. Complaint: On 8^th January 2014, this Employee spoke with the Production Manager about a number of difficulties he was experiencing in his employment.   He stated that the Complainant was not demonstrating certain tasks to him and generally ignoring him.   The Production Manager requested that this Employee put his allegations into writing.   In his written complaints this Employee alleged that the Complainant was: deliberately not helping him; calling him “stupid” in the Canteen: being told he was not working fast enough; not being informed of the next task and general favouritism.

A Meeting was arranged with this Employee and the Complainant in which these issues were discussed.   At the end of this Meeting the Complainant once again simply denied the complaints made. Once again as there was no independent evidence to support these complaints, no further action was taken.

No 4. Complaint:   On 27^th February 2015, this Employee raised a grievance in relation to alleged bullying and intimidation on the part of the Complainant and others.   She alleged that the Complainant and other made false allegations against her; that she was spoken to an intimidating, aggressive tone and that her integrity was called into question.   This Employee stated that “she could not continue to work in this atmosphere” and that this conduct “has no place in the workplace, but sadly it’s somehow being made into same.”

On 2^nd March 2015, the MD informed the Complainant of the allegations and requested him to attend a Meeting in respect of this.   The Meeting took place on 20^th March 2015.   On 18^th May 2015, more specific allegation were put to the Complainant and a further Investigation Meeting took place on 4^th June 2015.   In the course of this Meeting the Complainant, once again, denied the allegations, stating the only discussions he had with this Employee was in relation to the ‘clocking’ system; he simply claimed the rest of the matters were untrue.

No 5. Complaint:   On 13^th March 2015 this Employee raised a grievance, alleging that she felt bullied and intimidated by the Complainant and others; in particular she alleged that:

1. Every time she enters a room the Complainant and 2 others stop speaking
2. The Complainant did not speak to her regarding what was regarding what was happening on the line
3. The Complainant and 2 others stare at her
4. The Complainant and 2 others laugh and snigger at her
5. The Complainant and 2 others kick each other under the table when she is speaking
6. She is afraid to speak to the Complainant
7. She feels like she is “being set up for a fall.”

Separately this Employee alleged that following her return from her uncle’s funeral on 11^th February 2015, the Complainant made a number of inappropriate comments in relation to members of her family.

On 16^th March 2015, the Complainant was requested to attend an Investigation Meeting on 20^th March 2015, in relation to these allegations.   At this Meeting, the Complainant’s Representative stated that the complaints were too vague to be answerable.

The allegations were set out in greater detail on 18^th March and a further Investigation Meeting took place on 4^th June 2015.   At this Meeting, again the Complainant simply denied the complaints and he also stated that the Employee in question would often request a lift home from him and he suggested she would not do this if he was bullying her as alleged.

No 6. Complaint:   On 27^th February 2007, this Employee raised a complaint that she was spoken to in an intimidating tone by the Complainant and that she felt generally intimidated by him.

Shortly after this this complaint was put to the Complainant, who denied ever speaking to this Employee in an intimidating manner or harassing her in any way.   When this response was put to this Employee, she declined to proceed with a formal complaint.

The Respondent said that on 6^th August 2015, they issued their decision in respect of the bullying allegations.   In this decision if was accepted by the Respondent that, once again, there was a lack of independent witness evidence in this matter.   They stated that nevertheless, regard was had to the previous allegations of No. 1, No 2 and No 3 above.   The Respondent said that:

“…….in each of the above cases, similar bullying allegations were made against you, only for the case to reach an inconclusive outcome.   Due to the striking similarity in each claim, and the fact that each Claimant left the business before the next claim was made, I must look to reasonable belief that there is significant cause for concern here.

The impact such claims have made on the business is obvious, as each employee has left the Company, is clear to see, even if the outcome of their claims was not a conclusive one.   (The Respondent) have a duty of care to all employees, and while I recognise that fair procedure must take place in all investigations and their outcomes, I find it reasonable to believe there is substance to these claims.   The fact that each one has happened without other employees to witness the claims, should not mean that the Company merely sit by and fail to act on this as an isolated claim, and would suggest there certainly is an issue at hand.   Had there been perhaps even two similar claims, then there would potentially be an argument to say these were indeed fraudulent claims against you.

However, as there are 6 claims, each one without witness, I find there is cause for concern here and (the Respondent) must do all it can to ensure that employees have a dignified and respectful environment to work in.   Further to this, we cannot continue to lose employees to such issues, where they feel they must leave out employment instead of working in such conditions.   As a whole that damages (the Respondent’s) image and reputation both internally and externally as word of mouth passes.

As these issues are historical through recent years, I believe there is a significant damage to the employer/employee relationship here, and I do not believe there can be the same level of trust placed in you.   I think this as a behavioural issue that will not improve over time, and the evidence would suggest same.   Therefore, I find there is other substantial grounds here at play, both from conduct perspective and requirement that the Company act on the amount of bullying complaints that have been placed against you.

I find the litany of claims made against you shows a strong lack of respect towards the Company and your fellow employees.   Such attitude towards the Company and colleagues has had a toxic effect on the atmosphere and internal morale of the workplace and the Company as a whole.   There is a clear lack of respect shown by you towards both parties, and I strongly believe such attitude would never change.   The sheer wealth of historical issues would suggest same, and has pushed the Company to take strong action this time.   While I recognise there is a lack of evidence of such, there is consistency in the claims made against you to management, and I believe there was almost a wish for you to have the Company in a position where you could cause such issues and avoid any sanction, by instigating such where there would never be a wealth of evidence for the Company to investigate.   Again as a Company we are unable to stand by and allow a return of such issues. You have threatened the integrity of the Company, whilst also threatening the health and safety of your fellow employees in bullying them and causing emotional harm.   The Company cannot allow such behaviour to return to the workplace.

The Respondent said that in light of the foregoing they held that;

“As your action amount to gross misconduct, and there is substantial grounds here to suggest you should not return to work, you are summarily dismissed and will not return from suspension.”

The Respondent said that their Disciplinary Policy provides at Point E.1m that “abuse of the personal harassment policy” is gross misconduct.   It further provides at Section F.1 dismissal as a potential disciplinary action to be taken in instances of gross misconduct.

The Respondent quoted from Sections 6(1) and 6(6) of the Unfair Dismissals Acts.   The Respondent said that a body of case law has developed regarding the “other substantial grounds” that may justify dismissal, and referred to and quoted from the following cases in support of their position:

• Sheehan -v- Keatings Bakery [UD 738/1989]
• Brennan -v- Bluegrass Limited [UD 591/1993]
• Flynn -v- Power [1985 IR 648]
• Martin -v- Irish Nationwide Building Society [2000 1 I.R. 228]
• Higgins -v- Governor and Company of Bank of Ireland [2013 IEHC]
• Elia Erain -v- The Midland Health Board [1995 E.L.R. 48]  

The Respondent said the Complainant was dismissed in line with the requirements of the Unfair Dismissals Acts under 2 connected but distinct headings.

Firstly, he was dismissed due to a breach of the personal harassment procedure.   In the Company Handbook, which the Complainant received, it lists such breaches as gross misconduct attracting the penalty of dismissal.   The Respondent said it is beyond question that the allegations of the 2 complainants, if proven, would constitute a breach of the personal harassment procedure.   They said it is also beyond question that the standard of proof to be adopted in such cases is that of ‘the balance of probabilities’, i.e. where it is more than likely that the incident in question had occurred.

The Respondent said they note that there is a lack of independent 3^rd party evidence that would serve to shift this balance of probabilities against the Complainant.   They said that in essence the evidence came down to competing conflicts of evidence.   The Respondent submitted that however the instant case is distinct from the normal course of events.  

The Respondent said they note that there is a lack of independent 3^rd party evidence that would serve to shift the balance of probabilities against the Complainant; in essence the evidence in relation to the allegation came down to competing conflicts of evidence.   The Respondent said it is accepted by them that in the normal course of events the complaint would not be determined against the Complainant, due to the fact that the balance of probabilities is weighed in favour of the person to whom the complaint relates and such complaints, if proven, often incur the most severe penalties available.

The Respondent submitted that the instant case is distinct from the normal course of events.   5 similar allegations had previously been made against the Complainant.   These had been made over the course of a number of years by a number of persons that, in some cases, had never met each other.   In each of those situations the allegations could not be proven due to the lack of independent evidence; however this does not mean that these complaints were actually disproven or that they never occurred.   Rather, not enough evidence existed to prove the allegations.   Each time the Complainant was given the benefit of the doubt.   The Respondent submitted that these previous allegations could be used by them to determine that, on the balance of probabilities, the Complainant committed the alleged misconduct.

The Respondent said the Complainant simply denied the allegations when they were put to him and he never attempted to provide a constructive solution to the issue.   He did not at any stage provide the Respondent with any comfort that the behaviour complained of would not occur again.

The Respondent said that in light of the foregoing, and given that the complete breakdown of trust between the parties, they determined that dismissal would be the appropriate sanction in all the circumstances.

The Respondent said it is the case that the conduct of the Complainant caused fundamental damage to their business.   The actions of the Complainant had previously led to the resignation of 3 valued employees as well as causing disruption in the operation of the business.   Given that they operate in a small rural environment, such resignations are damaging to perceptions of the Company in the Community and affect the output of the Company.

The Respondent said it is beyond dispute that any employer has a legal duty to protect their employees from harassment.   In the instant case 6 separate employees complained that they had been harassed by the Complainant.   In such circumstances, the only way the Respondent could ensure that they complied with their legal requirement to prevent such incidents from arising was to dismiss the Complainant.

The Respondent said they accept that this is an unusual case that falls somewhat outside the normal procedure on industrial relations.   However, the Respondent submitted that the unusual features arise due to the numerous chances the Complainant has been provided with over the years.   The Respondent said that at some stage they had to be cognisant of their duty of care to the entirety of their workforce.

The Respondent said it is well settled that the test to be applied in a case of unfair dismissal is whether the decision to dismiss fell within the band of reasonable responses and it was submitted that when presented with these multitude of complaints over the years and in light of the duty of care the Respondent owes to their workforce any reasonable employer would have dismissed the Complainant.

Following the submissions of the Complainant and in relation to the suggestion of collusion between 2 of the persons who had made complaints against the Complainant and who were sisters, one of them was called by the Respondent.

The Witness was a Production Manager with the Respondent and she confirmed that she had made complaints about the Complainant.   She was aware that her sister had also made complaints about the Complainant; however she was not aware of the detail of her sister’s complaint.   She said she did not ask her sister or any of the others who made complaints about the Complainant for support in making her complaints, nor did any of them ask her for support.   She said there was no collusion with her or by her in relation to her complaints or any other complaints made.   She said that she made her complaints independent of anyone else.

Based on the foregoing the Respondent submitted that the complaint was not well founded and that it should be rejected.

Summary of Complainant’s Submission:

The Complainant said he had substantial service with the Respondent and had quickly been recognised for ability and dedicated service by being promoted after 6 months to a supervisor job.

On 2^nd March 2015, the Complainant was informed by letter from the Managing Director (MD) that allegations of bullying had been made against him and 2 other employees under the formal grievance procedure; he and the other 2 employees were required to attend an ‘Investigation’ Meeting with the MD.   A copy of the complaint, from the Production Manager (PM) dated 27^th February was enclosed along with a copy of the Grievance Procedure.

A date was agreed for the Meeting.   A further letter was issued to the Complainant from the MD dated 16^th March 2015, in which he was informed of a new complaint lodged by another named employee.   This complaint also implicated 2 other employees as well as the Complainant.   9 points of complaints were listed and on occasion the word ‘they’ was used; therefore it was not clear what elements of the complaints were directed at the Complainant as opposed to the other 2 persons. The complaint was written in the third person ……referencing the person making the complaint as ‘she’ as opposed to ‘I’…..and The unionsaid in effect it appeared to have been written by someone other than the person making the complaint and it was unsigned.

The unionsaid that the employee making who was making the ‘new’ complaint was sister of the person who had made the initial complaint and it appeared to the Complainant that this was simply a case of siblings supporting each other against him as he no knowledge of any concerns raised in the new complaint.

The unionsaid that the Meeting to address the issues raised in these 2 complaint letters took place on 20^th March.   The MD conducted the Investigation Meeting, but The unionsaid it soon became clear that he had not established the facts surrounding the allegations against the Complainant, so the Meeting was adjourned.   The Meeting that was scheduled to take place with the other employees was also postponed as the allegations against her were also unclear.  

Following this Meeting, The union followed with an email outlining the position from this Meeting and sought to have the matter closed on the basis of a lack of substance to the complaints against the Complainant.   The MD emailed The union on 31^st March 2015, stating the Investigation was ongoing and that he would revert in due course.

The union said that without discussion the Complainant and 2 colleagues were suspended by the MD, when they reported for work at 8.30am on Tuesday 21^st April 2015.   The union said that no prior notice was given to the Complainant, nor did he receive any explanation, either at the time or since.   Furthermore he was not provided with an opportunity to have representation or assistance at this time, he was simply told by the MD that he was now banned from both of the Respondent’s premises.   The union emailed the MD seeking a reversal of the decision on this suspension.

On 18^th May 2015, the Complainant was in receipt of 2 further letters from the MD, in which he was informed of an Investigation Meeting on 25^th May 2015.   One was to be dealt with under the Formal Grievance Procedure and the other under the Anti Bullying Policy.   The union said the Meeting took place on 4^th June 2015, following which The union sent their record of the Meeting to the MD and it was not challenged.   The Complainant had provided a written response to allegations made against him in the 2 complaints.   On 11^th June 2015, the MD responded to SIPTU, stating that responding to their letter was a priority for him, however no response was issued.

The union followed up by email on 18^th June 2015, and again on 3^rd July 2015; this latter letter noting that the other suspended employees had been asked to a meeting with the MD to discuss a redundancy proposal and the Complainant was not.   The union said it was after 2 months, on 6^th August 2015, before any further contact was received from the Respondent and this was a letter from the MD dismissing the Complainant.   The union said that to date no P45 was issued to the Complainant, and the Complainant said that for that reason he was unable to receive social welfare benefits.

In the letter of dismissal the MD accepts that there was no witness evidence against the Complainant, but he then raises 4 additional complaints/claims, 3 of which were never previously raised or brought to the Complainant’s attention, and one that was raised in 2007 and resolved.   The union said there is no history of unacceptable behaviour by the Complainant.   The union said the Respondent have a history in that regard as can be evidenced by a previous unfair dismissal case successfully brought by another employee in 2011/2012.

The union said that an appeal of the dismissal decision was immediately lodged with a named Director of the Respondent.   The Appeal Hearing took place on 31^st August 2015.   The union said it was 14^th September 2015, before the minutes of this Meeting issued and these were not accepted as accurate and this was the subject of a letter to the Director on 17^th September 2015.   The union said that no response and more significantly no decision was ever issued from this Appeal.

The union said that a referral was made under the Unfair Dismissals Act, lodged on 28^th October 2015 and was copied to the Respondent, informing of the Complainant’s availability to re-engage at local level, but no response was received to this correspondence.

The union referred to the Respondent’s statement of response and said the Respondent attempts to show justification for the dismissal of the Complainant, claiming the Complainant was guilty of Gross Misconduct.   The union responded to some of those numbered points as follows:

(1)    –

(2)    –

(3)    The Respondent denies the allegation that the Claimant was unfairly dismissed.   The Claimant was dismissed for gross misconduct in line with Section 6(4)(b)

The union said the claim of misconduct has not been supported by evidence.

(4)    In February an allegation of bullying was made against the Claimant.

The union said it is incorrect to state that an allegation of bullying was made against the Complainant in February 2015.   The allegation made on 27 February 2015, was not a bullying complainant and was to be addressed under the Company Grievance Procedure.   Furthermore this related to a ‘once off’ incident which would not fit the definition normally used and accepted (i.e. ‘repeated inappropriate behaviour’ as set out in the HSA Code of Practice).

(5)    The Claimant was invited to an investigation meeting on 2 March 2015, in order to gather more information about the allegation.   The meeting took place on 20 March 2015 and the Claimant was offered the right to representation.   The Claimant was accompanied by his The union Representative at this meeting.

The union said it is correct to state an investigation meeting took place on 20 March 2015; however it should be added that the investigator was unable to provide the detail of the allegations made against the Complainant (or the other workers).

(6)    A further two members of staff made allegations of bullying against the Claimant.

The union said it is incorrect to state that two other members of staff made allegations of bullying against the Complainant.   One other employee, the sister of the employee who made the original complaint, made a complaint of bullying against the Complainant.   No other complainant was identified.   It should be noted that this was received prior to 20 March Meeting.

(7)    The Claimant was suspended pending further investigation on 20 April 2015.

The union said the Complainant was suspended on 21 April 2015, not 20 April, and there is no evidence to suggest that further investigation took place during this time. The union said it should be noted that the Complainant had worked in his normal role throughout the period since the complaints were made, 2 months since the first complaint was made by another was made by another employee, and a month after the second was made known to him on 16 March 2015; he carried out his duties without any difficulty so there was no basis for the suspension.

(8)    The Claimant was invited to a disciplinary meeting on 4 June 2015.   The Claimant was afforded the right to representation and the meeting was minuted.

The union said it is incorrect to state that the Complainant was invited to a Disciplinary Meeting on 4 June 2015.   This was an Investigation Meeting and this can be verified by reference to the letters of 18 May 2015, which issued to the Complainant in this regard.   This Meeting was initially to take place on 25 May was changed at The union request to 4 June 2015, and was to follow up to the (adjourned) 20 March Investigation Meeting.   NO disciplinary meeting with the Complainant ever took place, which is contrary to normal industrial relations procedures.

(9)    At the Disciplinary Meeting the Claimant denied the allegations and maintained there was a lack of evidence against him.

The 4^th June Meeting was not identified as a disciplinary hearing.

(10) The Respondent took some time to consider what was discussed and to gather more information.   It was found that there was a reasonable belief to substantiate the complaints regarding the Claimant’s behaviour towards colleagues.   The effect on his colleagues and on the business was too serious to be dealt with by a lesser sanction than dismissal.   The Claimant was issued with a dismissal letter on 6 August 2015.   The Claimant was afforded the opportunity to appeal.”

The union said that rather than gather further information the Respondent simply canvassed the Complainant’s work colleagues and never provided any of the information gathered in this canvass to the Complainant or allowed him the right of reply…..but later acted on statements they say they received.   This is contrary to the principles of natural justice.   There is no evidence to support the suggestion that the Complainant’s behaviour had a negative impact on his work colleagues and/or the business.   The union said there is no reason to believe that a lesser sanction was considered.

(11)The Claimant appealed the decision and the appeal hearing took place on 31 August 2015.   The decision to dismiss was upheld, however due to an oversight the letter upholding the decision was not issued.

The union said the Complaint was issued with minutes from this Appeal Hearing and response with amendments was made to the Respondent.   The Complainant was never notified of the decision from the Appeal despite a reminder from The union on 17 September 2015 that the Company Procedure provided that a decision issue within 5 working days.   It may well have been an oversight, but it could also be an indication of the little significance given to the issue by the Respondent.

(12) Section 6(4) of the Unfair Dismissals Act states “…..the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from the following:                                                                                                                    b) the conduct of the employee,

The union said the Respondent has failed to show any misconduct on behalf of our member and is therefore in beach of the Unfair Dismissals Act

The union said that the dismissal was clearly unfair.

The union said that the Complainant had a responsible position with the Respondent.   He served as a Supervisor for the bulk of his employment with the Respondent.   The Respondent saw fit to retain him in this role for almost 14 years and must therefore have had confidence in his ability.   He could after all have been demoted if there was any question over his capacity to fulfil that role.

The union said that for natural justice to be served any allegations made against the Complainant should have been provided to him so that he could challenge those accusations or accusers and this was not done.

The union said the second complaint made against the Complainant by the first employee’s sister was to be dealt with under the Respondent’s Anti Bullying Policy.   However those procedures were not utilised or adhered to.   The Informal Procedure was passed over without explanation.   The union said that under the Formal Procedure “the complaint should only contain precise details of actual incidents of bullying”.   The union said that this complaint did not provide precise details.   Initially the complaint was not provided to the Complainant, contrary to this Policy and The union said that there is no provision for the suspension of these procedures.   The union said the Complainant should have been notified of the reason for his suspension and provided with the opportunity to have representation, but he was not.   The Complainant should have been issued with the written findings of the Investigation conducted by the MD; but he was not issued with the findings either verbally or in writing.     The union said the Complainant should have been provided with the opportunity to attend a disciplinary hearing, but he was not.   The Complainant should have been provided with the outcome from his appeal, but he was not.

The union said that ‘justice delayed is justice denied’ and that this certainly applies in the instant case.   The union said the Complainant was suspended without cause and the Respondent failed to engage with for weeks after his suspension.   Again the Respondent failed to engage for a further 2 months after the Investigatory Meeting on 4^th June 2014 and then only to inform of his dismissal.

The Union referred to what happened to the other 2 employees against whom complaints were made and they said that it was obvious that the Respondent made decisions based on their preferred outcome as opposed to acting in an unbiased and objective manner.  

For all of the foregoing reasons the union and the Complainant sought a finding and decision that the Complainant had been unfairly dismissed.

The Complainant gave evidence of his efforts to secure alternative employment and mitigate his losses.   The Complainant said that he has had no income of any sort since his dismissal as his application to the Department of Social Protection was rejected because the Respondent had not provided a P45.

Findings and Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1) 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.

There are many matters of grave concern in the manner these matters were handled by the Respondent and they did not handle the matter in a way that respected the Complainant’s rights to fair procedures.

The Respondent states that in relation to their decision to dismiss the Complainant they took into account 4 previous ‘complaints’ of a similar nature made against the Complainant prior to the 2 ones being investigated that led to his dismissal.   I note that these allegations date back to 2007, 8 years prior to the dismissal of the Complainant.   I further note that none of these allegations were upheld by the Respondent, some were withdrawn and in relation to others it was decided that “there was no substantial evidence to show a regime of bullying by (the Complainant) and that no form of disciplinary or corrective action was deemed necessary by the Respondent at the time.   No disciplinary or corrective action of any kind was imposed by the Respondent on the Complainant in relation to these matters, not even of the most minor kind, such as a verbal warning, an admonishment as to future conduct, nor was any training or retraining in dealing with fellow employees provided, nor indeed was there counselling provided to the Complainant.   There was not at the time the slightest suggestion to the Complainant that he had an issue to address; the Complainant was entitled to the reasonable assumption that those matters had been entirely disposed of.   The Respondent cannot on the one hand reject these complaints when they are made, decide they do not warrant any disciplinary action or corrective kind, even of the most minor kind and years later decide to reinstitute them and use them to justify a dismissal.   Apart from the fact that such an approach represents a form of ‘double jeopardy’ to the Complainant, it is illogical and unfair, if it did not justify any corrective or disciplinary action at the time then logically it equally cannot years later.

In addition and of equal significance I note that the Complainant and his Representative were not notified during the the investigation process that these matters were being resurrected and could lead to his dismissal.   Thus the Complainant and his Representative were not afforded the opportunity to confront and challenge these allegations and those making them before the decision was made to dismiss him.   This offends against concepts of natural justice and fair procedures and of S.I. 146 of 2000 in relation to Grievance and Disciplinary Procedures.

On this ground alone I must find that the Complainant was unfairly dismissed by the Respondent.

While there were investigatory hearings held, these did not put all of the information used by the Respondent in arriving at the decision to dismiss the Complainant and accordingly did not allow him the opportunity to challenge or confront that information.   Again this is in breach of the Complainant’s fundamental rights and I find it renders the dismissal as unfair.

No disciplinary meeting was ever held with the Complainant.   It is clear from the documentation provided that the Meeting of 4^th June 2015, was in fact an investigatory meeting.   There was no separate disciplinary hearing and this is a breach of fair procedures.   Once the investigatory procedure was completed the outcome should have been put to the Complainant at a disciplinary hearing, and he be afforded the opportunity to respond to and/or challenge the outcome; he should also have been afforded the opportunity to make representations or have his representative making representations on his behalf including any mitigatory factors before any final decision on discipline was made.   Again this was not afforded to the Complainant and again this is a breach of natural justice, fair procedures and the provisions of SI 146 of 2000 and I find it renders the dismissal unfair.

I also view with concern the suspension of the Complainant and in particular the timing of same.   I note that the first of the complaints against the Complainant that ultimately led to his dismissal was made on 27^th February 2015.   The Complainant was informed of this complaint by letter of 2^nd March 2015, from the Managing Director. An Investigation Meeting took place on 4^th March 2015; other ones were held on 16^th March 2015 and 20^th March 2015; but the Complainant was not suspended until 21^st April 2015.   I am not aware of any further investigation that took place after that date.   Thus the Complainant was able to work normally for a period of more than 7 weeks while an investigation was taking place.   In the circumstances it is not possible to accept that the Complainant was suspended for the purpose of investigation and it appears in the absence of any other reasonable explanation that his suspension was a punitive measure and this is particularly the case in small rural area where the fact of his suspension would be common knowledge and would cause unfavourable conclusions to be drawn within the community and it further suggests prejudgement by the Respondent.   I am also concerned at the length of time it took for the initial process to take place; it started on 2^nd March 2015 and the letter of dismissal was sent on 6^th August 2015, this is a period of more than 5 months and no reason was advanced to me as to why it took such an inordinate length of time to complete.   As submitted by The union this was a case of justice delayed being justice denied.   I find and conclude that this was unfair to the Complainant and is a breach of fair procedures, which renders the dismissal as unfair.

While an Appeal Hearing of the Complainant’s appeal against the dismissal decision was actually held, no decision on that appeal was ever issued, despite The union reminding the Respondent including in writing of this fact.   In effect this means that no appeal of the Complainant’s dismissal was ever concluded.   Again I find that this is a breach of fair procedure and natural justice.

Based on the foregoing findings I have decided that the Complainant was unfairly dismissed by the Respondent and accordingly that his complaint is well founded and is upheld.

In considering the appropriate redress I have taken all factors into account, including the views of the parties as expressed a the Hearing and I have concluded that there is a complete absence of the minimum level of trust necessary to sustain an employer/employee relationship and that accordingly the only appropriate redress in the instant case is compensation.

I have decided that the Complainant was unfairly dismissed by the Respondent and in accordance with the provisions of Section 7 of the Act, I require the Respondent to pay him compensation in the sum of €35,000.00c within 6 weeks of the date of this decision.

Dated: 15/06/2016