ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002812

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

Date of Adjudication Hearing: 05/09/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 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.

Respondent’s submissions:

This case arises out of trade union industrial relations issue. The complainant was appointed a SIPTU representative in 2015. At a meeting on the 28^th January, 2016 the complainant informed the respondent that all staff members were intending to implement an ‘observe and report policy’ by way of a change to the standard operating policy. The respondent felt that the purpose of the action was to create industrial unrest within the company. They felt that the complainant’s actions were contrary to the duties he had as shop steward were to promote a good working relationship between the company and the Union. It was also of great concern to them as the Luas contract was the only contract the company had. If the ‘observe and report’ policy was invoked by the employees it would have had a very serious detrimental impact on the respondent’s relationship with the contract provider. The complainant told the operations director that he had been in touch with their contract provider. Following some questioning on this issue, he admitted that he hadn’t been in contact with them, but that he intended to. The complainant was called into a meeting with the operations director on the 29^th January, 2016. The office administrator was present at the meeting as a note taker. The purpose of the meeting was to read out two letters to the complainant. Both letters were dated the 29^th January, 2016 and both were signed by the operations director. The shorter of the two letters had been read out to other staff members during the day. It stated:

“

At a meeting held with the shop steward on Thursday 28^th January, 2016 the company was formally notified by way of letter indicating that all staff members were intending to implement an observe and report policy by way of change to the standard operating procedures.

Since 1998 the company had developed and worked methods of patrolling and reporting that have been effective and successful and over these years, while implementing these procedures, the health and safety of the staff has been of primary importance.

The company site assignment instructions clearly describe the patrolling responsibilities and the method by which staff members will operate. Any change to these existing policies and procedures is a clear breach of the contractual arrangement between you and the company.

Any staff member who intends to operate an observe and report role is acting outside standard operating procedures and will be held accountable under the disciplinary procedures within the company.

Please consider carefully any advice from your shop steward in relation to implementing this policy as the company considers this action to be outside normal industrial relations process”

As the operations director was reading out the first letter the complainant became annoyed and in a raised voice said “ this is not the fucking army, this is bullshit and you are bullying and harassing me” He stood up and aggressively pushed the table up and over towards the operations manager and the administrator. He then came around to their side of the table and punched his chest with force. He then walked towards the operations director. At that point the operations director called the meeting off. He asked the complainant to leave. The complainant did leave. The operations director walked out into the hall. The complainant followed him and as he did so he punched the table. He shouted “ you are a fucking idiot, go on sack me, fucking sack me” The administrator was very upset and visibly shaken by the event. She thought a fight was going to break out and she would be caught in the middle of it. She had been with the company for 10 years and this was the worst she had ever witnessed.

At the start of that meeting the complainant asked for representation but it was refused as the sole purpose of the meeting was to read out the two letters, nothing more. The complainant then went to the kitchen and left with his colleague.

The operations director when over to the operations manager’s office. He was visibly upset. He told the operations manager that he had been assaulted by the complainant. It was decided to contact the response car to ask the complainant to return to the office. When he returned, the operations manager called him into his office. Another member of staff with there too. He asked the complainant what had happened. The complainant began to grip the arms of the chair tightly and squeeze his lips. The operations manager formed the opinion he was too agitated to work.

The operations manager then commenced a formal investigation. He held two investigation meetings one on the 4^th February and one the 25^th February. On the 4^th he heard directly from the operations director and the administrator. The complainant was allowed to cross examine the administrator and all of the others who gave statements. He also established who had heard or seen anything that day. He interviewed them too. One of the complainant’s colleagues made his statement but the following day came back and stated that he wanted to change it. He raised a formal grievance via e-mail the following day. One other individual felt that he was being pressured by the complainant. The complainant agreed not to contact him but did and he admitted it. The complainant gave his version of the events on the evening of the 29^th January. Again on the 24^th February he was asked for his version of the event.

There was an issue in relation to ‘Facebook’. The staff were promoting a ‘blue flu’. That Christmas there was an unusually high number of staff out sick. He didn’t include that in his investigation report but admitted that once he had read it he couldn’t unread it. The investigation report was given to the complainant and to his union representative. The operations manager handed it to him on the 2^nd March, 2016. He looked at it and said there was a typo. The word ‘agreed’ should have been ‘alleged’. That was accepted. When the operations manager went out to seek advice in relation to the typo the complainant was asking his friend to ‘ take that down, write everything he says’ It was said in an aggressive tone. He then came up to his face and said “ I’ll fucking see you later” . That matter was reported to the gardai.  

The matter was progressed to a disciplinary. A non executive director ( NED) was appointed as the disciplinary officer. Normally the managing director would carry out that function but he was away so the NED did it. He was given the investigation report and the supporting documentation. The documents had been given to the complainant but his SIPTU representative arrived on the day of the hearing without any notes. Arrangements were made to have them photocopied for him. The purpose of the meeting was to deal with the issue of the complainant’s behaviour when in the room with the operations director and the administration on the 29^th January and nothing else. The complainant took issue with the slant the operations managers had put on the facts. He questioned the operations manager suitability to carry out the investigation. The complainant then stated that his relationship with his partner was over and he wasn’t sleeping and was stressed about it. That was taken into consideration as a mitigating factor. After the meeting the notes were copied and were given to the complainant. The complainant then stated “should you decide to not sack me, I will only return if the operations manager is not there”.

The complainant was informed by letter dated the 10^th March, 2016 that he was being dismissed. He was given the right of appeal. He appealed the decision. The appeal hearing was heard on the 22^nd March, 2016. The decision to appeal was upheld.

Complainant’s case.

At the meeting on the 28^th January the complainant attended along with a SIPTU representative. There was a frank exchange of words between the complainant and the respondent in relation to the level of attacks on the Luas. The complainant then presented the respondent with the “observe and report” policy. It provoked the respondent. The complainant accepts that this course of action was not backed by his Union. He was put under a lot of pressure by the staff to do it. The complainant’s Union representative stated that there was never a real threat of industrial action and he felt that the respondent totally overreacted.

The complainant stated that the day after he received phone calls from various staff members who were abusive to him because they felt that he didn’t give a damn about them. He found that very upsetting.

Later that day he was called into a meeting room with the operations director and the administrator. He asked could he leave was told “No”. The operations director then turned his back to him and continued to read out the letter. He felt very uncomfortable and got up to leave. His two legs hit of the table and it did move forward slightly. The table did not hit anyone. He accepts he was asked to take the two letters with him and that he said “ this is not the army” . The operations director then said, “ this is you and the union that have done this” and he replied “ you are a fool if you think that this is me who has done this” When they stepped out into the corridor some of the staff members there said “no, we do want this” .The complainant then left and when out to the response car with his colleague. He was called back shortly afterwards. When he came back he went into the operations manager’s office. He said that he could bring his colleague with him if he wanted to. He told me that he had spoken to the operations director and the administrator and that he didn’t need my version of the event. He was clear what happened. He was sent home, suspended. He accepts that he got his letter suspension but denies getting the witness statements or the terms of reference. He had to fight to get the witness statements. Eventually they gave them to him.

The complainant took issue with the investigation and disciplinary process. He questioned the presence of a HR advisor at the 2^nd investigation meeting. His representative wrote three letters during the process expressing his outrage at how it was being handled. The complainant felt ‘blindsided’.

He accepts that he did apologise to the administrator if he made her feel uncomfortable. He doesn’t accept that he did make her feel uncomfortable. The complainant accepts that he did receive the minutes of the first investigation meeting. He signed for them.

At the second investigation meeting the HR consultant was introduced. The operations manager stated that the note take would “write what I tell him write”. He actually wrote nothing. During that meeting the complainant was allowed to cross examine all those who had made statements in relation to the matter.

At the third investigation meeting on the 25^th February the HR consultant was introduced as an investigator. The complainant had two witnesses with him. At that meeting he asked if he could make a statement and that request was again refused. At that meeting about 100 pages of Facebook posts were introduced. The complainant stated that they were not relevant to this investigation. There was also an issue with a translator for one of his witnesses.

When the investigation report was completed he was called into the investigators office. He noticed the typo and brought it to the investigation office’s attention. He then ripped the letter out of the complainant’s hand. He went to the kitchen and stated to his pals “ they are at it again” When he went back into the office he took a member of staff with him . He did ask that member of staff to write down what was being said. The investigator threw the file at him, shouted at him and said “come on, I’ll take you on”.

At the disciplinary meeting very little time was given for him to state his case. He disciplinary officer had another meeting to go to so it hurried it along.

The complainant’s loss as of the date of hearing was € 7,560.00.

The complainant’s first witness said that he was outside the meeting room at the time of the alleged altercation. He could see into the room through the glass panel. He saw the operations manager sitting with his back to the complainant. He also hear the complainant ask if he could leave and being told “No”. He could hear raised voices followed by the noise of a chair moving. The complainant then came out into the corridor. The operations director said “ this is all your doing” and the complainant said “ no.... you are a fool if you think this is all me”. Later that day he also over heard the complainant ask if he could give his statement and that request being refused. The complainant’s second witness also corroborated his version of events.

The complainant denies any wrong doing. He denies swearing, he denies acting aggressively or punching himself or the table. He said that ever since he became the shop steward the respondent’s attitude towards him changed.

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.

Section 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.

The complainant is alleging that he was unfairly dismissed by the respondent. The burden of proof lies with the respondent to prove that the dismissal was fair in all of the circumstances.

The first issue I must address is whether or not the suspension of the complainant was warranted. In the very recent decision of Bank of Ireland v Reilly [ unreported ][2015 IEHC 241 Noonan J stated:

The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future. As noted by Kearns J in Morgan v Trinity College, there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.

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. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employers own business and reputation which the conduct in issue is known by those doing business with the employer. In general it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

I am satisfied that both the operations director and the administrator were genuinely frightened during the course of the altercation in the meeting room on the 29^th January. They both genuinely believed that the situation was close to deteriorating into a fight. The complainant was the author of that situation and by his actions placed them both in fear. I am satisfied that his suspension was warranted in order to protect members of staff. The complainant’s relationship with the respondent, and with his Union, had broken down in relation to the ‘observe and report’ policy issue. Tensions were high. The complainant was under tremendous pressure from other staff members to implement the ‘observe and report’ policy. It is my opinion that it was that pressure that caused him to act in the manner he did. It is also my opinion that during that volatile period the respondent was justified in suspending him to prevent any further occurrences.

Having considered the respondent’s evidence and documents submitted I am satisfied that the procedures that were followed were fair and objective. I am satisfied that the complainant was in receipt of the witness statements and was given an opportunity to read them and comment on them. He may not have received them in an as timely a fashion as he might have liked. The evidence of his union representative was that he got them after the first investigation meeting. There were two more investigation meetings where the complainant was free to address any issues he had with the content of the statements. He was also given the opportunity to cross examine the authors of those statements. He was given copies of the minutes of the meetings. He actually signed for them. He was given a copy of the investigation report. He was given several opportunities to give his version of events and did so on more than one occasion. He was given amble notice in relation to the disciplinary hearing and was afforded the right to representation. He availed of that right. I can find no procedural defect that could render the dismissal unfair. In all of the circumstances I find that the dismissal was fair and proportionate.

Accordingly the complainant’s claim pursuant to the Unfair Dismissal Act, 1977 fails.

Dated:   18/11/2016