ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002653
Complaint for Resolution:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003679-001 | 05/04/2016 |
Date of Adjudication Hearing: 02/08/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
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 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.
Attendance at Hearing:
By | Complainant | Respondent |
Parties | An Employee | A Fish Processing Company |
Respondent’s Presentation on a Preliminary Issue :
The respondent disputed the claim for Unfair Dismissal on two grounds . Firstly they raised a preliminary issue on time limits and the lack of jurisdiction to advance the claim and secondly, submitted that the dismissal was fair on all grounds.
Preliminary Issue:
The respondent submitted that the claimant was dismissed on 5th October, 2015 and the WRC acknowledged receipt of the instant complaint on 5th April 2016 .As the claim was not submitted within a six month period the claim must be denied jurisdiction under the provisions of section 8(2) of the Unfair Dismissals Act 1977-2007.
The claimant accepted the dismissal date of Oct 5 2015,as this grounded his application to the WRC. He did not submit a claim under minimum notice legislation and as such accepted the dismissal without notice .The company was not aware of any exceptional circumstances which delayed his application to the WRC. The respondent relied on the authority of Vacas v Carway UD 1187/2011 in support of this contention .
“The case came before the EAT by way of an employee appeal of a Rights Commissioner recommendation .Both Rights Commissioner and EAT found that the claim for redress under the Unfair Dismissals Acts 1977-2007 was submitted outside the 6 month limitation period and thus the EAT determined that it lacked the jurisdiction to hear the claim .”
The respondent submitted additional case law:
Michael Gabor v NYD ltd UD 2436/2011
Bannon V St John of God Community Services UD1781/2012
Brandt V St Clare’s Primary School UD 2044/2010
Duigean V Ballybrittas Motors ltd UD 2037/2011
Employee V Employer UD305/2012
The respondent sought the exclusion of the claim under the Acts.
Complainant’s Submission and Presentation:
Complainant Response to the preliminary issue:
The complainant submitted that the reference to 5 October 2015 on the complaint form was a clerical error. The date of dismissal was understood by the complainant as November 3rd 2015, to take account of a stay in proceedings pending the outcome of the internal appeals process. The complainant had lodged this appeal in line with the direction in his contract. The outcome of the appeal was notified to him on November 3rd .The complainant contended that the company was on notice that he had not accepted dismissal. The Company handbook stated “…Unless the appeal is lodged within 5 days, it is deemed the employee accepts the decision.”
The complainant relied on Ann Marie Ryan V UPC Communications Ireland Ltd UD13/2013 EAT 24 September 2014 : where ambiguity was identified following a lack of clarity of what follows a dismissal pending an appeal .On that occasion, the EAT allowed the case to proceed .
The complainant was not afforded the notice period referred to in his contract of 4 weeks and sought application of the contra preferentum rule in the face of non compliance with section 1(b)(1) of the Unfair Dismissals Act 1977.
Decision on the Preliminary Issue
I adjourned the hearing to consider both parties submissions and the following is my decision in response .The complaint was received by the WRC on 5 April 2016. The date on the complaint form was 5 October, 2015.
The complainant is a Polish national. He was not represented professionally during the disciplinary procedure or during the termination of employment. I appreciate that a mistake may have been made on the claim form. Tribunals have allowed some lea way for complainants to amend claim forms when such mistakes are made as long as the substantive nature of the claim is not altered and the employer is on notice.
However, I noted that there was an ambiguity in the complainant’s contract of employment in terms of notice periods, which he could have reasonably expected to have conclude by November 2nd2015.i.e 4 weeks .He was not paid in lieu of notice .He received the outcome of the appeal on November 3rd ,2015. I am also confused by the date entered on the P45 of 2 October 2015, three days before the letter of dismissal issued
In the letter of dismissal, the respondent refers to a summary dismissal but this is not accounted for or defined in the contract of employment and I must prefer and accept the statutory definition provided for in Section 1 of the Acts where date of dismissal is set down as:
1(b) Where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act 1973, the date on which such notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates
The earliest date that would be in compliance with the provisions of the contract
The earliest date that would be in compliance with the provisions of the Minimum Notice and Terms Of Employment Act 1973
On that basis, I find that I prefer the submissions of the complainant on the matter of time limits and while I did address the parties on the narrow windows available to parties to progress claims under employment legislation. I find that there was an ambiguity in the contract, which was not understood by the complainant in the circumstances , allowing for the statutory period of notice which saved it .I find, therefore that I accept the date of dismissal to be November 2 2015,the later of the two dates , which permits jurisdiction for me to hear the case . There were no arguments made by the complainant on the delay being due to reasonable cause.
Respondent Presentation and Submissions
The complainant commenced work for at the respondent food company as a Production Operator on 1st August 2006, where he worked without incident until Friday 3rd July 2015. The respondent has a large and successful business, employing 65 people. He also worked from time to time as a fork lift and truck driver.
The respondent contended that the company was targeted by the complainant in a deliberative process which culminated in his dismissal.
On July 3, 2015,the respondent approached the complainant via a colleague Mr D to meet with them regarding operation of the food business, , i.e. weighing the product, transferring goods and getting the product ready for export .Four people were in attendance, the owner, Mr O, the Operations Director, Mr OM, the complainant and his colleague, Mr D .
The respondent was concerned when the complainant became argumentative and obstructive , reminding the respondent that he was underpaid as a driver compare to other drivers in the same market .The owner pointed out that he was not a proper driver as he did not undertake the full role .There was a difference of opinion and when the owner advised the complainant that he could work for other companies who paid higher wages if he liked , the complainant abruptly left the office and the premises .He did not arrive for work the next day .The respondent understood that he had left the job.
The company received a Medical cert stating that the complainant was ill on July 7th. On his return to work on Friday, July 10th, the complainant was requested to meet with the owner and Mr OM . He was informed that the respondent was not pleased with his behaviour over the previous Friday and Saturday. The respondent disputed the medical cert. By that stage the company had been informed that the complainant had posted negative comments about the company on social media and confronted him with these facts. The complainant denied any involvement with the account .The respondent suspended the complainant on full pay pending a meeting on the following Tuesday.
The complainant was invited to attend a disciplinary meeting schedule for Wednesday; July 15.The outcome of this meeting was a finding of gross misconduct. The complainant was invited back to work the next day on the provision that:
He would accept a final written warning of 6 months duration.
And
He would submit an apology and retraction in writing for the accusations that he had been fired, bullied or intimidated.
The complainant did not respond to these requests and the company issued a Final written warning notification to the complainant. This was in response to
The walk off site on July 3rd
Social Media posting criticising the company
Making false accusations against two managers and allegations that his driver’s card had been withheld.
Post dated medical certificate.
This warning was appealed on July 16th by the complainant. The appeal hearing was held on July 23rd .The meeting was attended by the complainant, his representative, Mr M , Mr FC and Mr POF on behalf of the company. The complainant did not engage in this process and walked out of the meeting , ignoring the attempts by Mr FC to resolve the matter .The meeting lasted three minutes .The final written warning was upheld and the complainant was invited to return to work the following Monday, August 10. The complainant was invited to a back to work meeting to clear the air.
Mr FC held the meeting and did not make progress with the complainant. Instead, the complainant reiterated that he still had difficulty with the company and was seeking an apology for the way he was being treated by the owner .He understood that the owner had stolen his Drivers card and he intended to inform the Gardaí if it wasn’t returned.
The company suspended the complainant by letter pending an investigation .The complainant was invited to submit information to the investigation, but did not do so. The respondent invited the complainant to an investigative meeting on August 19.
The respondent was aggrieved that the complainant had not inputted into the process that he had initiated ,but found that there was no evidence of his drivers card being stolen or withheld .The complainant replied by stating that it was a separate card that was missing .
On August 24th, the complainant made a formal complaint of Bullying and Harassment against the owner of the company. This time, the company commissioned an Independent HR Consultant to complete the investigation .His complaints were not upheld.
The complainant was invited to a disciplinary meeting on October 1st .The complainant attended with a representative but did not input into the meeting .The complainant was dismissed by letter on 5 October. This decision was appealed. The appeal was conducted by Mr POF, for the respondent .The complainant submitted that the final written warning was out of step with the disciplinary process. The dismissal was upheld.
The respondent submitted that the company had acted fairly and reasonably .They contended that the complainant had brought matters to a head himself by his own actions, not taking wise counsel and by making additional unfounded allegations. The company acted within the band of reasonableness at all times, citing the authorities of
Looney V Looney EAT, UD 843/194
O Brien V Duesbury t/a The Old Ground Hotel ltd UD 1232/2011.
The respondent contended the company acted properly in dismissing the claimant for gross misconduct. There was a total breach of confidence in the employment relationship .The complainant had not engaged in the appeal process and never apologised for his unfounded allegations. The complainant made very serious allegations against the company ,coupled with the unacceptable social media posting where the company was referred to as “ rats “ followed by a retort that “ he would win big in court “ were all a step too far for the company .They stood over their actions of dismissal and had followed the company handbook .
Evidence of the Owner, Mr O
Mr O recalled seeking a meeting with the complainant on July 3. The objective of the meeting was to discuss an anticipated increase in contracts. Mr O was taken aback at the approach adopted by the complainant in seeking to be promoted to a Driver, who had been a relief driver and multi tasker up until then. During cross examination, Mr O confirmed that the complainant was aggrieved that he had not been given a drivers position. He was not ready to become a driver as he had to be accompanied on business journeys when he wasn’t familiar with the routes.
Mr O confirmed that his son had informed him on July 3rd, that negative comments about the company were posted on social media by the complainant. He was very aggrieved both himself and his company had been referred to as rats.
Evidence of Mr OM, Operations Manager
Mr OM recalled the meeting of July 3rd, which was held in his office to discuss work practices. He confirmed that the complainant was unhelpful and the conversation turned to a newly hired truck driver. The complainant was dissatisfied with his wages, saying others doing the same work as he was earning €1,000 a week. The complainant stormed out of the office and was lost to the business for the rest of the day and the following day, causing significant inconvenience for the company. A medical cert was submitted following reception of a text sent confirming his illness .
The issue of the social media posting took over as the owner became very upset. Mr OM suspended the complainant and Mr FC took over the management of the matter from then. Mr OM had always liked the complainant, but he wanted to him to accept the verbal warning and move forward with the company.
In cross examination, Mr OM confirmed that he had spoken with Mr D and Mr FC in the course of his 5 day investigation. The complainant denied that the social media issue had anything to do with him . He issued a final written warning and sought to negotiate an apology with the complainant by offering to lift the suspension. The CPC card issue ran in parallel with the other issues but the CPC was not company property. It was individualised to the complainant.
Evidence of Mr FC
Mr FC was the Financial Controller who was responsible for Human resources at the company .He took up the issue following Mr O and Mr OMs lack of success in resolving the impasse .It was a very difficult matter to manage .He together with Mr POF held the appeal hearing on the final written warning on July 23rd. He was accompanied by a friend and was further concerned by the complainant’s apparent total disinterest in the process. The meeting lasted three minutes.
.Mr FC recalled the return to work meeting, post sick leave, involving the complainant on August 10. He recalled him threatening the company with the Gardaí, by stating that the Guards would be at the company that evening .He found the complainant’s lack of detail in his complaints to be worrying .Mr FC undertook an investigation into the complainant’s complaint on the missing Drivers card. He made the decision to suspend the complainant .He was concerned at the inconsistency in the complainants dealings with the company and the ongoing negativity he displayed.
Mr FC was aware of the outcome of the investigation into the complainant’s complaints of bullying and he was aware that the allegations were not proved. There was deadlock after the Disciplinary hearing. He did not have any further involvement as Mr POF heard the appeal of the dismissal.
During cross examination,
Mr FC confirmed that he wrote the first letter of suspension and was troubled by the complainants lack of resolve in seeking to resolve the issue .Inspite of all that occurred, He never heard him say that he wanted his job back .The complainant lacked insight and didn’t take the time to make alternative proposals when things went wrong at the company.
In response to direct questions, Mr FC confirmed that the complainant had not been asked to apologise for the social media posting, neither had he accused the owner of disturbing the tachograph. The truck was checked and the card was not located there .The complainant was invited back to work on repeated occasions but chose not to engage with the company.
The complainant was good at his substantive role but the company had two deliveries rejected when he did the Dublin driving run.
Fair procedures were use in dealing with the complainant.
Complainant’s Submission and Presentation:
The complainant worked with the Respondent for 9 years without incident .He worked in the yard and also made truck deliveries 2/3 days a week.
The respondent was on notice of the complainants desire to become a full time driver. He had always assisted the company in this regard and hoped it would soon become on a firmer footing.
On July 2, he received a call from Mr O , who remonstrated with him that he was not present in the company yard .He explained that he was out on an approved transport run, but Mr O hung up . The next day, during the course of a meeting with Mr O and Mr OM, he inquired into the prospect of Driver work and he was admonished by Mr O and threatened. He was informed that he was unsuitable for driving given his bad sense of direction. He was informed that he could go elsewhere if he didn’t like it .At that stage, he was driving deliveries 2/3 days a week, but paid as an operative. He believed that he was underpaid in his role. It became apparent that his delivery of the previous day had not been sanctioned by a supervisor .The complainant went home very distressed.
The complainant attended his Dr and was on sick leave for a week. The complainant admitted to posting negative comments on a social media site but took them down after two hours.
On his return to work on July 10, he was asked to account for his departure from work the previous week where he had submitted a medical certificate. He was placed on suspension on pay pending a disciplinary investigation into “an allegation of serious misconduct and misconduct”. The complainant forwarded an email in response seeking an engagement on
1 A formal explanation of what he did wrong
2 The reason for his dismissal on 3 July
He state that he felt intimidated and bullied. Nothing followed until July 15th, when he was issued with a final written warning .The complainant did not have an input into this process. There were four components to the warning:
1 July 3rd walking off the site
2 Bringing the company into disrepute following posting on social media
3Making false allegations on bullying, harassment and withholding of a drivers card
4 providing a post dated sick cert
The complainant was permitted to return to work on the proviso that he issued a retraction and drop his bullying claim. The respondent ignored its own disciplinary procedures.
The complainant appealed the disciplinary sanction by letter of July 16. As the warning had been placed on the complainants file, both he and his representative left the meeting. The appeal did not succeed. The complainant was invited back to work the following Monday, but had a period of illness until August 10th.
On his return to work on August 10th, the complainant was left sitting for 45 minutes in the respondent office and told that he was not permitted to work. This time he was placed on un paid suspension .He received a letter from the company outlining the allegation that he had made.
“The company has now made the decision to suspend you from work pending an investigation into the allegations you have made. These are very serious allegations. I would like your assistance into the investigation, so can you please provide me with the list of witnesses and any other information about the card going missing that will be of relevance.”
The investigation concluded without locating the drivers card .There was no evidence of the card being stolen or withheld .The complainants suspension was lifted on August 20, but accompanied by a repeated request for a retraction, prior to his return to work. He was invited back to work on Monday 24th August .The complainant responded by re-affirming his complaints against Mr O.
On September 1, the respondent invited the complainant to an investigation into his complaints by an Independent Investigator. He met with the Investigator on September 9. The complainant was not provided with all of the statements that were generated during the course of Mr Is investigation. The complaint was not up held.
The complainant was then invited to a disciplinary meeting to address allegations of gross misconduct on September 30Th .These were enumerated as “vexatious bullying complaints and bringing the company into disrepute “. The respondent invited the complainant to attend the outcome of this process.
On 5 October, the respondent issued a dismissal notice to the complainant .This was appealed as the complainant sought a sanction less than dismissal .The outcome of the appeal was notified to the complainant on 3 November .He was given three reasons for his dismissal .
1 Vexatious Bullying complaint.
2 Bringing the company into disrepute with social media posting.
3 Allegations of theft against Mr O.
The complainant submitted that the dismissal was flawed on a number of fronts .Fair procedures were not followed in conducting the three separate investigations that followed the meeting of July 3, 2015.
The complainant believed that the respondent was intent on dismissing him as he challenged the management about getting a drivers position .He believed that he was being used as a driver yet being paid less than a drivers wage.
The complainant was punished twice for the same offence in the final written warning letter and subsequent dismissal letter. They contended that the dismissal was disproportionate .There were no substantial grounds on which to dismiss the complainant for gross misconduct.
Evidence of the Complainant
The complainant recounted an uneventful 9 years of employment .He obtained his Truck Driving licence and he was promised a pay rise by the respondent. In the meantime, he was engaged in general operative work. He was always on time .He asked for the driving job as he had health issues .He understood that it was the ideal time for him to change within the company .The company hired a driver from the UK and he was aggrieved by this and challenged Mr OM . He was informed that he was needed in his present job.
He recalled receiving a call from Mr O on July 2. He recalled that Mr O was angry when he told him that he had been told to do the run by a supervisor .On July 3rd, he clocked in, went to the truck preparing to do a delivery when he put his tachograph into the box in the cab. He was then approached by Mr D and requested to meet Mr O in a downstairs office.
He was asked to explain why he hadn’t been on the yard the previous day and was reminded that Fork lift was his job. He was informed that he did not know how to drive the company routes and the owner hit the table and insulted him further.
He returned to work on July 10, and was met with Mr O and Mr OM .He felt that the approach on his health reasons for absence were very personal .He was approached regarding his comments on social media . He admitted that he had done this because he was disappointed at how he was treated .He was suspended and told to return with a witness. Mr O told him that “his head was fucked up “and he needed help.
He was invited back to work on July 15th following a meeting with Mr O and Mr OM. He was informed that the company had enough proof to dismiss him but if he signed the final written warning and withdrew his complaints he would be permitted to return. He understood that the recourse to a final written warning was wrong as it by passed all other options.
The complainant told Mr OM that he was not prepared to sign as it was not proportionate and he was afraid if there was a next time, he would be sacked .He was suspended and removed from the pay roll. He appealed the warning but was unsuccessful. He found the process a farce as he had been informed that the warning was already on his file.
He returned to work on August 10 and was left waiting for 45 minutes in the canteen before meeting with the respondent .He told the company that he had nothing to apologise for , that the social media posting was “ a moment “ which he deleted in 4 hours .He expected Mr O to apologise to him . He was unwilling to sign a retraction as he said he could be sacked any time. He recalled the company telling him that “I can’t sack you now as you will go straight to court “
The complainant co operated with the third investigation into the bullying complaint .Four days after receipt of the outcome of the investigation, he receives the statement submitted by Mr D. He attended the disciplinary hearing and learned of his dismissal from the company shortly after this .He had a limited recall of the appeal meeting but recalled that he was told the reasons for his dismissal. In relation to social media. He confirmed that he had 50 friends on the site but they were his friends .He did not accuse Mr O of stealing.
During cross examination, he denied he was misleading the hearing by answering questions in English, despite the presence of the interpreter. He confirmed that the social media postings were “stupid” but that he was upset at the turn of events on July 3rd and he was a simple man and didn’t know procedures .He confirmed that Mr O had supported him in his time at the company. He had not contacted the Gardaí about the missing CPC/tachograph card .He walked out of the meeting on July 23rd as he felt he wasn’t being taken seriously. He was very upset about his experience at work and became stressed. He submitted three medical certs for stress.
In answer to the question whether he had orchestrated the whole events since July 3rd and whether the matter was predetermined? He answered “If I wanted to go to court I would have gone earlier “
He described being overwhelmed by the actions of the respondent and consulted a psychiatrist. He confirmed that the certs issued were not from that source.
In answer to why he had omitted to make a comment on the final report of the bullying complaint? He replied saying that there was no point, he had tried everything to get his job back, and he couldn’t do anymore.
Evidence of Mr M, Internal representative at meetings
Mr M attended the meeting as a witness with the complainant on July 15 where the final written warning was issued .The meeting was attended by Mr O and Mr OM and he recalled that he had to translate. The complainant was stressed. He was left with one choice on how to proceed. Mr M attended the appeal with Mr FC and Mr POF in the company of the complainant. This was a quick meeting. They received confirmation that the final written warning was on file and felt they could not progress the issue. He recalled the complainant being asked to apologise .He did not have a clear recall of the disciplinary meeting which led to the dismissal.
During cross examination, he confirmed that he had a number of roles during the process, friend, interpreter and representative. He confirmed that he understood that the complainant had not been given an adequate opportunity to state his case during the many meetings .He confirmed that time was permitted to allow the complainant to input any changes he wished into the draft report on bullying.
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(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.
Legislation involved and requirements of legislation:
Unfair Dismissal Act 1977 as amended
6
- —(1) 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.
Section 6 (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
…
Section 6 (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—
(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
(b) 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 practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.
Determination of claims for Unfair Dismissal. Section 8 of the Acts
8
8.—(1) (a) A claim by an employee against an employer for redress under this Act for unfair dismissal may be referred by the employee to the Director General and, where such a claim is so referred, the Director General shall, subject to section 39 of the Act of 2015, refer the claim to an adjudication officer for adjudication by that officer.
(b) Section 39 of the Act of 2015 shall apply to a claim for redress referred to the Director General under paragraph (a) as it applies to a complaint presented or dispute referred to the Director General under section 41 of that Act, subject to the modification that references, in the said section 39, to a complaint or dispute shall be construed as references to a claim for redress so referred.
(c) An adjudication officer to whom a claim for redress is referred under this section shall—
(i) inquire into the claim,
(ii) give the parties to the claim an opportunity to be heard by the adjudication officer and to present to the adjudication officer any evidence relevant to the claim,
(iii) make a decision in relation to the claim consisting of an award of redress in accordance with section 7 or the dismissal of the claim, and
(iv) give the parties to the claim a copy of that decision in writing.
(1A) A decision of an adjudication officer under subsection (1) consisting of an award of redress in accordance with section 7 shall include a statement of the reasons for the award of such redress and the reasons for the adjudication officer’s deciding not to award other redress under that section.
(1B) Subsection (14) of section 41 of the Act of 2015 applies to a decision of an adjudication officer under subsection (1) as it applies to a decision of an adjudication officer under that section subject to the modification that the words ‘subsection (1) of section 8 of the Act of 1977’ shall be substituted for the words ‘this section’.
(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015]) to [the Director General]—
(a) within the period of 6 months beginning on the date of the relevant dismissal, or
(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,
and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.
Decision:
I have listened carefully to the parties in this case and I have considered the submissions and evidence presented .
In the first instance , I am struck by the undisputed accounts of good working relations up until July 3rd 2015 which emanated from both parties . I find that this altered completely from that date and this has prompted a full review of the sequence of events as there is considerable conflict between the parties .
I have been asked to make a decision in this case. That decision must rest on whether, based on the facts of the case and the application of the law to those facts, the dismissal was either fair or unfair .In this I am guided by Sec 6(1) of the Unfair Dismissals Act, which directs that a dismissal will be unfair, unless, if having regard for all the circumstances, there were substantial grounds for the dismissal.
Section 6 (4) of the Act provides that “the dismissal of an employee shall be deemed for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from (b) the conduct of the employee”. The burden of proof rests with the employer in that regard.
Section 6(7) of the Act directs me to consider the reasonableness of otherwise of the actions of the employer. It is not for me to decide whether the respondent was right or wrong in what he/she did rather, was it couched in reasonableness Lord Denning has described the test clearly in :
.British Leyland UK Ltd v. Swift [1981] IRLR 91, Lord Denning MR).
‘Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view”.
Bank of Ireland and James Reilly [2015] IEHC 241, provides a relevant Irish Authority on the application of this doctrine
“ It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its views for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken “
In the instant case, I find that what started life as a standard pay /promotion claim became disturbed by the events of July 3rd. The complainant had an expectation that he could improve his job by becoming a driver; Mr. O told the hearing that nobody in the company had made the transition to the post of driver previously. I accept that the complainant did not anticipate the obstacle to his planned progression , he understood that it would follow in time .I accept that he was shocked at the “ knock back” experienced during the course of the July 3rd meeting . However, he walked out of the meeting and from his work; this was undisputed between the parties.
I find that the subsequent placing of the negative comments on the social media site formed the nexus of this case. In evidence, the complainant minimised the event and focused more on the responses of the respondent to the posting. There were variable reports on how long it was posted between 2 and 4 hours. It was open to the respondent to place the complainant on notice that he had been notified of the posting and it was open to the complainant to acknowledge the “ moment “ ( of posting ) as it was later referred to in the case . This did not happen from either parties perspective in the wake of the posting on July 3, 2015.Instead, the respondent led out with a back to work meeting on July 10th, which metamorphosed into something much bigger.
Analysis of the Respondent submission
I accept that the respondent was highly aggrieved by the posting on social media. The minutes produced governing the HR Meeting of July 10th had as their stated purpose : “ To discuss the disciplinary issues of last week” The respondent had not placed the complainant on notice of these issues .I accept that by then the company had formed the view that the complainant was about to formalise a legal challenge against them as asserted in “ see you in court rats “commentary on social media , therefore they adopted a highly procedural process in their subsequent interaction with the complainant .However, I must conclude from the evidence adduced that they did so in part deviation from their own procedures .
The company handbook permits prior notice and a deliberative basis in all disciplinary matters .I found a very well scripted set of policies in the handbook. However, I must conclude that the company varied the application of these policies.
1 There was no prior notification to the complainant that he was facing any disciplinary issues on his return to work on July 10. I appreciate that the respondent may have been frustrated by the denial of the social media posting by the complainant; however the company protocol on execution of a suspension was not followed. Essentially, there was no evidence of deliberative process or the parallel existence of a document as described in the handbook.
2 I accept that the company did make a genuine attempt to resolve matters between the complainant and the Managing Director. I fully understand that the objective of the company was to resolve issues. Mr OM made a sincere effort to look behind the events of July 3rd and July10th and to construct a fair minded corrective action. I note that the final written warning proposed for the complainant was for 6 months, half the actual length of 1 year referred to in the handbook.
However, the company made a cardinal error by seeking to add a postscript/addendum to the sanction. By seeking to add a further non negotiable sanction on the letter or retraction, the respondent departed from their policy in this regard. I can appreciate that the middle management team of Mr OM, Mr FC and Mr POF were senior at the company and they wished to bridge the broadening chasm which was beginning to emerge between the complainant and Mr O, the managing Director ,however , the deviation from their own procedures was regrettable . The complainants return to work was always conditional on an apology and retraction I appreciate that personalities can sometimes dominate a conflict zone and it can be difficult to move forward, however, it is helpful to allow room for compromise to be that enabler.
3 Mr FC notified the complainant of his suspension and final written warning .He heard the appeal of the warning ,undertook the investigation into the missing Drivers card, conducted the meeting which led to dismissal and notified the complainant of his dismissal. He also tried to encourage the complainant to compromise and return to work up to and including offering to review his absence of salary in the intervening period. I find that these roles should have been delineated and shared to avoid the overlap that occurred.
4 The independent investigation into the Bullying complaint resulted in the complaint not being upheld. It is unclear just who determined the finding to be a vexatious complaint. On reading the recommendations, I found that the author anticipated the complainants retention in the company as he was mentioned by name so as to be “offered an introduction on Bullying and Harassment “No evidence was placed before me on the deliberative process which converted “an appropriate action on the conclusion of the complaint not being upheld” and a “decision to dismiss. I find that these are mutually exclusive processes .Dismissal must always been seen as a last resort.
5 The company did not have a live social media policy at the time of the posting on July 3rd. I fully accept that the respondent had grave difficulties with both the substantive posting and the substantive content of the message. He held an honest belief that the Company which had built by him was damaged, yet no evidence of this was adduced. I accept that the company was on high alert of litigation from the complainant from that date forward. This overarching apprehension was visible in the respondent submission and in the cross examination of the complainant. They believed that they were tricked by the complainant and I will address this in my analysis of the complainant’s submission.
Suffice to say, this area of Social media in employment law is a present day challenge to all parties.
In Social Media and Employees-Use and Abuse IELJ 2013, 10(1)4-10, Cliona Kimber BL and Shaun Smyth BL remarked that:
“In this as with other cases, there is a central tension between what is public and private. There exists a misapprehension amongst social network users that what they upload to their sites is “private”. Whilst most social media sites do employ privacy options that allow users to customise exactly who may view specific content, such measures do not necessarily entail deem it necessary to employ stringent privacy. Furthermore, many social network users have a large network of “friends”, with whom they have very little interaction in real life, or with whom they may even be not very well acquainted at all.”
The question of the appropriateness or otherwise of social media postings in the course of employment is a growing area of jurisprudence from O Mahony V PJF Insurances [2012]E.L.R.86, this case addressed a social media posting where the complainants manager was referred to “ as a bitch” in addition to other disparaging remarks. The EAT determined that there had been a significant breach of trust which made employment untenable. The dismissal was determined as fair.
In an Australian Fair Work Tribunal case: Dianna Smith T/A Escape Hair Design V Sally Anne Fitzgerald C 2010/5245, a claim for unfair dismissal was upheld following a social media posting of a display of dissatisfaction with an employer. A salutary rider was attached which serves as an alert on responsibility following a posting.
“A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see … it would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.”
In Mehigan V Dyflin Publications UD 582/2001, the EAT determine that that there was no policy in existence on the appropriate use of IT and the dismissal was found to be unfair .In Kiernan V A Wear ltd UD 647/2007, The EAT determine that a strong reprimand and possibly disciplinary action ought to have followed a reference to a derogatory reference to a manager on Bebo .The sanction of dismissal was found to be disproportionate, where the complainant was found to have made a significant contribution .I see some overlaps in the instant case .
I find that caselaw submitted by the respondent on Looney v Looney and Duesbury ltd t/a Old Ground Hotel ltd V O Brien are distinguished from the facts of this case .Looney involves a case of theft and Duesbury refers to a lateral allegation between work colleagues . The instant case was largely a horizontal conflict situation centred on the complainant and a Managing Director .
Analysis of the Complainant submission
I find that the complainant did have an argument with the respondent on July 3rd. This is uncontroverted. He acknowledged at the hearing that he had posted the negative comments on the social media site. However, his main focus was on the treatment he received from MR O, the Managing Director, in particular. I find that the complainant did not utilise the readily available grievance procedures to address his acknowledged dissatisfaction in the pay/promotion and his dissatisfaction of his treatment by the respondent .I cannot accept that he did not have knowledge of the procedures because he was a simple man, as submitted in his evidence . I find this omission to raise a grievance as curious.
I find that the complainant showed a certain lack of judgement by presenting to work on July 10th without a plan to address his abrupt departure from work the previous Friday. I appreciate that he may not have been on notice that the respondent was aware of the social media posting, however I believe that it would have been reasonable to seek informal discussions in advance of his return, given the gravity of the message in the posting .I appreciate that the complainant was permitted an opportunity to input into the deliberative process in advance of the final written warning. It is not clear from the evidence why he chose not to act on that invitation.
1. I find that the complainant adopted a by-stander rather than a participative approach at an early juncture in the wake of 3rd July.
The WRC Code of Practice on Disciplinary procedures offers guidance to both employers and employees. The complainant chose to bring a friend to the meetings who was not known to the company. The code recommends that an employee representative includes “a colleague of the employee’s choice and a registered Trade Union, but not any other person unconnected with the enterprise “I appreciate that the company policies permitted the presence of a friend. My analysis of the case led me to conclude that the complainant may have benefitted more from a representative familiar with the nuances of the company. I appreciate that the complainant was stressed and needed the support of an Interpreter; however, the roles of interpreter , representative and friend should have been delineated by him .
2 The complainant placed an overarching reliance on compilation of a dossier of documentation from an early date. I could not adduce from the evidence submitted either orally or through written submissions that the complainant had engaged in any meaningful way with the company procedures. I found that he sought detail without reciprocation.
I note that it was open to the complainant to correct the synopsis of the complaint on the Driver card rather than tachograph. He did not do this .In addition , he informed the Adjudicator that he had not informed the Gardaí of the loss of the card , or given them a copy of the written report he compiled , which was in direct conflict with the minutes of the Investigative meeting of September 9th .
3 The complainant disputed the findings of the Investigative report, but did not avail of the provision for commentary or the provision for appeal therein. I am struck by the apparent silence of the complainant at the final disciplinary hearing which led to dismissal and the conflict contained in the notice of appeal.
. Disciplinary Procedure:
“At the disciplinary meeting you were offered an opportunity to state your case and you replied that you had nothing to say and no comment “
Appeal Letter:
“There was insufficient consideration of my explanation of the circumstances leading up to dismissal “
I find that I must resolve this conflict in favour of the respondent, as the attempt to reach out to the complainant was a common denominator adopted by the respondent throughout this case, albeit via the incorrect application of their own procedures. Therefore, I find that I cannot accept that the complainant was denied fair procedures on the right to be heard.
4 I have already found that the application of the suspension was in contravention with the company procedures and did not have due regard for Noonan J commentary in Bank of Ireland V Reilly
“Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question “
The company did not investigate the face book posting or indeed the medical certificate to any noticeable extent. I have formed the view at the conclusion of this case that the complainant sought to minimise the social media posting in favour of his perception that he was unfairly treated by the Managing Director and the company inadvertently condoned this approach up until they ran out of patience on the pronounced deadlock following the conclusion of the bullying investigation. They believed that they were being cast as a management team in dress rehearsal for latter day litigation.
5 I have also found that the request for retraction and apology was wrongly placed as an addendum to a disciplinary sanction of final written warning .In Taylor V Somerfield Stores, UK EAT /2007 (unreported).in a case of gross misconduct, there was no evidence of reputational damage and the dismissal was found to be disproportionate .The Tribunal appeared to give some weight to the lack of evidence on the “enumeration “of “hits” that might constitute reputational damage. In the appeal hearing in the instant case , Mr M submitted that the complainant contended that he was not compelled to explain about the social media posting , because it was removed and did not acknowledge that it was a disrespectful act.
In the instant case, I find the complainant did not recover from his disappointment that his desire to become a driver and leave “outdoor “work behind him was dashed on the morning of July 3rd 2015. It appears to me; at least that he distanced himself from the company from the date of his attempted return to work on July 10th. I am conscious that his three weeks of stress related sick leave do not appear to have been reflected in any deliberative process outside the Investigative approach of the external Investigator. This period must be regarded as sick leave and not suspension.
I find that a fractious relationship developed between Mr O and the complainant following the meeting of July 3rd and the social media posting. The respondent was aggrieved at the negative commentary directed at his company which he had built up over the years. The complainant was aggrieved that his desire for improvement in his terms and conditions of employment had been dealt a seismic blow. The respondent endeavoured to manage the fall out via its own procedures, but in the absence of a specific policy on social media usage, the situation drifted further into interpersonal conflict and a series of allegations and counter allegations to the point where the respondent terminated the complainants employment noting his lack of his stated desire to retain his job or any targeted submissions in his defence. In short, the company lost trust in the complainant.
There are shortfalls in both parties’ positions in this case. However, on balance, I must find that the respondent veered outside the band of reasonableness when they suspended the complainant outside procedure and sought to expand the remit of a final written warning away from corrective to being punitive as well, by demanding an apology and a retraction as a precondition for the complainants return to work in July and August 2015. I see this as a “sack cloth and ashes “approach and must be regarded as disproportionate.
In addition, the insertion of a vexatious complaint of bullying as one of the three grounds for dismissal, without a corresponding finding in the investigative report is both illogical and unreasonable . Taken together, these actions do not in my opinion meet the test asked of the respondent ; of operating within the “ band of reasonableness “ on the dismissal of the complainant . The claim for Unfair Dismissal must therefore succeed . I am guided by the deliberations in Reilly on redress:
“At the end of the day, the court has to grant the remedy which will do justice between the parties “
I find that the complainant made a significant contribution to his demise at the respondent company. I have considered the complainant’s submission on mitigation and loss and current differential in his hourly rate and I award the sum of €7,000.00 in compensation as the other remedies are not practical in this case. There is no claim for redress under minimum notice legislation .
Dated: 7th November 2016