ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002983

Complaint for Resolution:

Date of Adjudication Hearing: 03/10/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and following the referral of the complaint 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.

Background.

The Complainant was employed as a Manager by the Respondent from 9^th October 2000 until the employment was terminated on 26^th January 2016. The Complainant was paid €55,000.00 per annum and he worked 37.5 hours a week. The Complainant 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 27^th April 2016 alleging he had been unfairly dismissed by the Respondent. The dismissal was not disputed.

Summary of Respondent’s Position.

The Complainant was initially employed as a Temporary employee on 9^th October 2000 and promoted to Manager on 1^st November 2007. He continued in this role until the date of his dismissal on 26^th January 2016.

The Respondent became aware In July 2015 of Public Allegations in relation to the Complainant. There were a total of six allegations made and these were provided to the Hearing

The Respondent established an independent Investigation Team to conduct an investigation in accordance with the provisions of the Grievance and Disciplinary Procedures of May 2004. The names of this three person Investigation Team was communicated to the Hearing. The Investigation Team met with the Complainant on 19^th August 2015. The Complainant was accompanied by his IMPACT Union Official. The Investigation Team issued their Report to the Complainant, his IMPACT Official and to the Acting CEO of the Respondent on 30^th September 2015. The Investigation Team found that the practices identified in the six allegations were unacceptable and in breach of the Respondent’s Policies. The Investigation Team acknowledged the Complainant’s full co-operation with the Investigation.

The Respondent set up a Disciplinary Committee which was chaired by an External Independent HR Consultant (Named). Two named internal employees made up the three person Disciplinary Committee. The Committee wrote to the Complainant on 9^th and 12^th October 2015 setting out its Terms of Reference and invited him to a meeting. The Complainant submitted a Medical Certificate following which a Disciplinary Meeting was scheduled for 11^th January 2016. The Complainant attended this meeting and he was accompanied by his IMPACT Representative.

The Committee wrote to the Complainant on 26^th January 2016 stating that the Committee had unanimously agreed that the Respondent could not continue to have trust and confidence in the Complainant and recommended his dismissal with immediate effect.

The Complainant was informed by the HR Relationship Manager by letter dated 27^th January 2016 that his employment with the Respondent was to cease with effect from 26^th January 2016, the date of the decision of the Disciplinary Committee. The Complainant was afforded a right of appeal and that a named Independent Consultant would hear the appeal.

The Complainant appealed the decision to dismiss by letter dated 2^nd February 2016 and the named External Independent Consultant was appointed. The Complainant and his IMPACT Official were interviewed. . He finalised his Decision which issued to the Complainant, his IMPACT Official and the Acting CEO on 12^th April 2016. The Consultant established there was no disagreement in relation to the facts on which the decision to dismiss was made, rather it was an interpretation of those facts which was the issue. The Consultant found there was no evidence of such substance presented as would persuade him to overturn the decision of the Respondent to dismiss the Complainant.

Summary of Complainant’s Position.

The Complainant was suspended on full pay following a public airing by the media on 15^th July 2015. The Complaint was dismissed on 26^th January 2016. The Investigation Team appointed by the Respondent met with the Complainant in August 2016 and the three person Investigation Team issued their report on 30^th September 2015.

The Disciplinary Hearing was delayed as the Complainant submitted medical certificates. The Disciplinary Hearing was scheduled for 11^th January 2016. The Complainant was represented by his IMPACT Official.

The Complainant referenced the Letter dated 12^th October 2015 from the Disciplinary Committee where at Point 6 of the issues to be addressed by the Disciplinary Committee was “whether the (Respondent) can continue to have trust and confidence in you”. The Representative of the Complainant argued that this showed the Committee had predetermined the issue as the raising of the issue denotes a reason for lack of trust in the Complainant.

The Complainant and his legal Representatives also referenced Paragraph 2.2 of the Notes of the Appeal Hearing of 25^th February 2016 where the Consultant conducting the appeal states “clarified that the dismissal is effective from the day the Disciplinary Committee made their decision and not from the appeal date. (Named) said there was a 50/50 chance of success and if you end up at adjudication, it would be in the (Complainant’s) favour that he went through the internal appeals process”. This they argued denotes a finding against the Complainant and denotes a predetermined outcome.

The Complaint and his Representative’s referenced Paragraph 3.2 of the Notes of the same meeting of 25^th February 2016 where the Complainant had raised an issue that the Disciplinary Hearing had lasted only 22 minutes thus showing a predetermination.

The Complainant also noted that the Consultant had informed the Complainant at the meeting of 25^th February 2016 that he would request the Respondent not to proceed to fill the Complainant’s Post until the internal appeals process was completed.

The Complainant stated that the Respondent should have informed the Complainant of his right to legal representation during the internal process and they referenced a Supreme Court Case in Burns v Governor of Castlerea Prison (2009) in support of this argument.

The Complainant also stated that there was only one meeting held with him during the Appeals Process and that the issues raised in his letter of appeal dated 22^nd February 2016 had not been fully considered by the Appeals Consultant and that the decision of the Disciplinary Hearing had been solely on one allegation (Named).

The Complainant also referenced the issue of his witness which he decided not to call as he had been informed to limit his contact with other employees and not to discuss the investigation.

The Complainant stated that he had commenced employment on 12^th September 2016 and is earning €50,000.00 per annum. The Complainant stated that he had been in receipt of Jobseekers Benefit from the Department of Social Protection until September 2016. The Complainant was requested to provide a statement from the Department to verify this but he did not do so.

The Complainant is seeking reinstatement.

Findings

On the basis of an extensive written submission from the Respondent and a verbal submission from the Complainant I find as follows:

There was a considerable amount of Reports from the Investigation Meetings, the Disciplinary Hearing and the Appeal Hearing in relation to this complaint. I have read each of these Reports and find –

The Respondent became aware of allegations against the Manager of the Respondent Company on 25^th July 2015 which referred to six specific incidents which were set out in detail by the Respondent at the Hearing. These allegations were made by a media outlet.

The Complainant was suspended on full-pay pending an investigation. The Respondent appointed a three person external team to conduct the investigation. The Complainant was made aware of the allegations against him and he was provided with the Terms of Reference for the Investigation. They met with the Complainant on 19^th August 2015 and the Complainant was accompanied by his Trade Union Representative from IMPACT. They issued their 9 page Final Report on 30^th September 2015. The Investigation Team interviewed both the Complainant and a Named Managing Director from a named Company as part of the Investigation. They investigated all six allegations against the Complainant and made findings of fact in relation to each allegation. They found five breaches of the Respondent’s Policies and these were set out in the Report.

The Acting CEO of the Respondent, on receipt of the Report of the Investigation Team, decided to set up a Disciplinary Committee to decide what Disciplinary sanction, if any, was warranted. This was chaired by an external independent Consultant with two other named employees of the Respondent. The Committee wrote to the Complainant on 12^th October 2015 setting out the issues to be examined by the Committee and attaching a copy of the Disciplinary Procedures of the Respondent. He was invited to attend a meeting on 16^th October 2015. The Complainant submitted medical certificates after which he was referred to the Respondent’s Occupational Health Department, following which it was decided to defer the meeting until 11^th January 2016. The Complainant confirmed he would attend. The meeting proceeded on 11^th January 2016. They issued their Findings and decision by letter dated 26^th January 2016. They concluded that the Respondent could not continue to have trust and confidence in the Complainant and concluded that the Complainant was guilty of serious misconduct which warranted dismissal with immediate effect. The Complainant was issued with a letter dated 27^th January 2016 terminating his employment with the Respondent with effect from 26^th January 2016, the date of the decision of the Disciplinary Committee. The Complainant was afforded a right of appeal.

The Complainant appealed the decision to dismiss on 2^nd February 2016. He outlined his grounds of appeal. These were in summary that the Disciplinary Committee ignored the remarks in the Investigation Report that the Complainant had co-operated fully with the investigation and that note be taken of this should it become relevant in due course... The sanction of dismissal was totally disproportionate. The Committee ignored evidence presented to the Committee in relation to Bank Statements presented by him – a finding of serious misconduct does not automatically require a sanction of dismissal. Finally that the letter dated 12^th October 2015 from the Committee indicated a predetermined outcome in relation to “trust and confidence” in the Complainant.

The Appeal Committee was chaired by an external independent Consultant. A note taker was also appointed. He had two meetings with the Complainant and his IMPACT Representative and he issued his findings on 12^th April 2016. This was a five page Report plus a five page Note of the meetings. He found that the Complainant had not put forward any evidence of such substance as would persuade him to overturn the decision of the Disciplinary Committee to dismiss the Complainant. I note that the Consultant conducting the appeal also interviewed the three member team of the Disciplinary Committee and notes of that meeting were provided at the Hearing.

I find that the Investigation, Disciplinary and Appeals Process were conducted in accordance with the Disciplinary Procedures of the Respondent. The process was thorough, fair and observed all the procedures of natural justice and fully complied with S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

The Complainant and his legal representatives raised a number of issues in the course of the hearing and I propose to deal with them as presented –

Right to legal representation. The Disciplinary Procedures of the Respondent provides for Representation on behalf of an employee. This clearly refers to Trade Union Representation. I note that during the entire process the Complainant was represented by his Trade Union IMPACT. The legal representative of the Complainant argued that the Respondent had a duty to inform the Complainant of his right to legal representation and referenced the Supreme Court Decision in Burns and the Governor of Castlerea Prison. I have read this decision of the Court and it is very clear that Geoghegan J rejected this approach where he stated “I would wholly reject that argument. Indeed if it was sound, the effect of it would be an entitlement in every case wherethere was an oral hearing to have legal representation”. I also note that during the entire process neither the Complainant nor his Representative requested legal representation.

Predetermined Issue. This was raised in relation to a number of issues. One related to the Disciplinary Committee having to decide whether the Respondent could continue to have trust and confidence in the Complainant... The second relates to a clarification offered by the Consultant appointed to hear the appeal. None of these issues denotes a predetermined outcome by either the Disciplinary Committee or the Consultant conducting the appeal.

Disciplinary Meeting of 11^th January 2016. The issue was that this meeting only lasted 22 minutes. I note from the Notes of the meeting of 11^th January 2016 that the Disciplinary Committee asked “if there were any further comments to be made” at the end of the meeting... The only issue raised was to again state the effect this was having on the Complainant and his family

Advertised his Position. The Respondent confirmed that his vacant position had been advertised but this was withdrawn pending the outcome of the internal appeal process.

Decision not to call his own witness. This was a matter for the Complainant and it was his choice not to do so. If he was in doubt he could have sought clarification from the Disciplinary Committee but he did not do so.

Decision. CA-00004107-001 

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^th November 2016