ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002938

Complaint for Resolution:

Date of Adjudication Hearing: 10/10/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8 (1) (b) of the Unfair Dismissals Act, 1977 and 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 employed from 9^th October 2007 until his employment was terminated by the Respondent on 26^th January 2016. The Complainant was paid €6212.00 gross per month and he worked 39 hours a week. He was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company.

The Complainant referred a complaint to the Workplace Relations Commission on 26^th April 2016 alleging he had been unfairly dismissed.

Summary of Respondent’s Position.

The Complainant was recruited as a Manager with the Respondent on 9^th October 2007.

In July 2015 the Respondent became aware from a media outlet in relation to allegations – specified – that involved the Complainant in his role as Manager. Upon receipt of these allegations the Respondent established an independent external three person Investigation Team. –Named. The Complainant was suspended on full pay pending the outcome of the investigation. Terms of Reference were set down and these were copied to the Complainant.

The Investigation Team met on 6^th August 2015 and met with the Complainant on 25^th September 2015. The Complainant was accompanied by his Solicitor, named. The Investigation Team issued their final report on 21^st October 2015 and issued a copy to the Complainant, his legal Representative and to the Acting CEO of the Respondent. The Investigation Team stated they had experienced significant difficulty in getting the Complainant to engage with the Investigation Team. He refused to answer any of their direct questions to him and he read from a prepared statement.

The Investigation Team concluded that the Complainant had breached the Respondent’s Policies. The Investigation Team also noted that he was fully aware of these policies as he was the Architect of the Respondent’s Policy and under that Policy he was the document owner.

The Investigation Team established on the balance of probabilities that the Complainant had breached his employment contract and had breached other named policies.

A decision was made by the Respondent to establish a Disciplinary Committee chaired by an external Independent HR Consultant and two employees of the Respondent were also appointed, to decide what disciplinary sanction, if any, was warranted. They wrote to the Complainant on 28^th October outlining their Terms of Reference and invited him to attend a meeting on 11^th November 2015. The Complainant submitted a medical certificate. A further meeting was scheduled for 22^nd December 2015. The Complainant did not attend and in his absence the Committee carried out preliminary deliberations and indicated to the Complainant by letter dated 22^nd December 2015 that having considered the evidence that was placed before it, it was minded to accept that gross misconduct had occurred and to recommend his dismissal. However he was afforded the right to make his case and to call witnesses to disprove the outcome of the investigation. This was mindful of his Consultant Psychiatrist’ letter indicating the Complainant was not fit to attend a Hearing. He was requested to submit any written rebuttal of the evidence in the investigation report, by 7^th January 2016. Following contact from the Complainant a meeting was organised for 14^th January 2016 and the Complainant was represented by a named HR Consultant

The Complainant advanced his response to two named allegations. The outcome of the Disciplinary Hearing was communicated to the Complainant by letter dated 26^th January 2016 and they unanimously found that the Complainant was guilty of the two identified allegations made against him and found he was guilty of gross misconduct that warranted immediate dismissal.

The HR Relationship Manager wrote to the Complainant on 27^th January 2016 advising him that his employment had been terminated with effect from 26^th January 2016. He was advised of his right of appeal to an independent external named person. The Complainant appealed the decision on 29^th January 2016. The Appeals Officer appointed interviewed both the Complainant and the Disciplinary Committee on two separate dates. The Appeals Officer issued his Decision on 12^th April 2016 and a copy was sent to the Complainant, his IMPACT Representative and to the Acting CEO of the Respondent. He found that no evidence was presented to him to convince him to overturn the decision to dismiss.

Summary of Complainant’s Position.

The Complainant held the role of Manager. The Complainant was dismissed in January 2016.

In July 2015 the Complainant became aware that a named media outlet was to run an item concerning irregular practices between a named Company and the Respondent. The Complainant approached Management to inform them of the likely material to be made public. He was advised not to make any comment. The public allegations were identified.

The Representative stated that the Respondent sought to protect its own image and reputation and the Complainant became the sacrificial lamb.

The Respondent commissioned an investigation team comprising of three named individuals and the Complainant was legally represented. An Interview took place on 25^th September 2015. At this interview the Complainant, on legal advice, read from a prepared statement in response to all questions by the Investigation Team. This statement raised a number of issues.

The Representative of the Complainant noted that the media outlet was notified of the investigation before the Complainant. The Investigation Team concluded its report in October 2015 and found on the balance of probability that the Complainant was in breach of his employment contract.

A Disciplinary Committee was established but the Complainant was unable to attend scheduled hearings due to ill-health. He did attend on 14^th January 2016 and this time was represented by a named HR Consultant. However on foot of a letter dated 22^nd December 2015 from the Committee to the Complainant it was clear that they had already determined the outcome prior to the meeting on 14^th January 2016. The outcome was to recommend dismissal with immediate effect.

The Complainant was afforded a right of appeal and did so on 29^th January 2016 outlining six grounds for his appeal. The Appeal was heard by an external Independent Consultant. While he was awaiting his appeal other employees were informed that he was gone from the employment – the media outlet was informed and his post was advertised. The outcome was to uphold the decision to dismiss.

IMPACT argued that the decision to dismiss was disproportionate – that a finding of serious misconduct does not automatically require a sanction of dismissal – the Respondent offered neither protection or support and behaved in a hostile manner – the investigation was flawed as relevant documents were not made available to him – the investigation made conclusions on the balance of probability – the Disciplinary Committee investigation was flawed when they wrote to the Complainant on 22^nd December 2015 – the Respondent compromised the Appeals process by advertising his position

The Complainant stated he had been in receipt of Illness Benefit from the Department of Social Protection since October 2015 and this was confirmed by the Department.

Findings

On the basis of the evidence and extensive written submissions from both Parties I find as follows:

The Investigation Team appointed by the Respondent comprised an External Consultant and two other nominees. The Complainant was interviewed by the Investigation Team on 25^th September 2015 and they issued their findings on 21^st October 2015 comprising a nine page report. This was done in accordance with the Procedures of the Respondent and with the Terms of Reference of the Investigation Team.

I note the exchange of correspondence between the Complainant, his Legal Representative and the Investigation Team between 10^th August 2015 and 21^st September 2015 when the Complainant through his legal representative agreed to meet the Investigation Team.

I note from the Investigation Report that the Complainant refused to answer questions and was only prepared to read from a prepared statement. This was provided to the Adjudication Hearing. The Investigation found that on the balance of probability the Complainant had breached his Contract of Employment, specified, and that he had breached specified Policies of the Respondent in relation to 5 stated named policies.

The Respondent, on receipt of the Investigation Report established a Disciplinary Committee to decide what disciplinary sanction, if any, was warranted. An External Consultant was appointed to chair the Disciplinary Committee. The Complainant was issued with the Terms of Reference and he was invited to attend a meeting with the Committee on 11^th November 2015. The Complainant submitted a medical certificate that he was unable to attend. A further meeting was scheduled for 22^nd December 2015 and the Complainant was invited. The Complainant did not attend. The Complainant was informed that he was to be afforded an opportunity to make a written submission to the Committee by 7^th January 2016. The Complainant agreed to attend a meeting with the Disciplinary Committee on 14^th January 2016 and the Complainant was represented by a named HR Consultant. The outcome of this meeting was communicated to the Complainant, his Representative and the Acting CEO of the Respondent on 26th January 2016. They unanimously found that the Respondent could not continue to have trust and confidence in the Complainant and he was guilty of gross misconduct which warranted his immediate dismissal.

The HR Relationship Manager of the Respondent wrote to the Complainant on 27^th January 2016 terminating his employment with effect from 26^th January 2016, the date of the decision of the Disciplinary Committee. The Complainant was afforded a right of appeal which he did on 29^th January 2016. The appeal was on 6 specified grounds.

An External Consultant was appointed to conduct the Appeal Hearing which took place on 2^nd March 2016 and the Disciplinary Committee were interviewed on 23^rd March 2016. The Notes of the meeting of 23^rd March 2016 were forwarded to the Complainant and his Representative. The outcome was issued to the Parties on 12^th April 2016 and he found that evidence had not been established to convince him to overturn the decision to dismiss.

I find that the Investigation, Disciplinary and Appeals Process was conducted with due regard to fair procedures and natural justice in accordance with the Procedures of the Respondent and in line with S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

On the basis of the evidence and my findings above and in accordance with Section 8 (1) (c) of the Act I declare the complaint of unfair dismissal is not well founded.

Date:     25/11/2016