UDD1623

Background

The Complainant commenced employment with the Respondent in 2007 as a chef; he was promoted to head chef in 2008. His employment was terminated for alleged gross misconduct on 23 April 2015 by letter of that date.

The Complainant raised a complaint of bullying and harassment against his manager on 10 December 2014. The Respondent engaged an external consultant, Paramount HR, to investigate the complaints. The Complainant was employed at the Respondent’s Ashtown premises at the time but was relocated to the Rathfarnham premises for the duration of the investigation. Paramount HR submitted its report to the parties on 29 January 2015. The complaints of bullying and harassment against the Complainant’s manager were not upheld.

The Complainant was dissatisfied with certain aspects of the investigation process and raised these in writing through his Union. Nevertheless, rather than addressing those procedural concerns, the Respondent initiated a disciplinary investigation into the Complainant’s behaviour on 27 February 2015. The subject matter of the disciplinary process arose in part from a finding of the bullying and harassment investigation to the effect that the Complainant had abused the latter process to make vexatious and unfounded allegations against his manager. There appears to have been a second limb also to the disciplinary investigation which dealt with certain issues concerning the Complainant’s conduct during the period he was relocated to Rathfarnham. On conclusion of the disciplinary process, the Complainant was summarily dismissed for gross misconduct.

Respondent’s Submission

The Respondent submits that it dealt proactively, expeditiously and reasonably with the allegations of bullying and harassment raised by the Complainant against his manager in December 2014; it engaged Paramount HR to carry out a full and thorough investigation of the complaints. The report prepared by Paramount HR identified certain shortcomings in the manager’s approach to his work in respect of which he subsequently received counselling. However, the allegations of bullying and harassment were deemed not well-founded but in fact were found to have been vexatious. This allegation – along with five other matters – was then the subject of a disciplinary investigation into the Complainant’s conduct. The investigation team comprised Ms Fidgeon and Mr O Suilleabhain. They recommended that there was sufficient substance to the allegations to proceed to a disciplinary meeting. This was conducted by Mr David Shortall and by Ms Plant from Paramount HR. According to his own testimony (and that of Ms Plant) Mr Shortall received HR and employment law support only from Ms Plant during the course of the disciplinary process. Both Mr Shortall and Ms Plant stated in their evidence to the Court that Mr Shortall was the sole decision-maker and his decision to apply the sanction of summary dismissal was warranted, reasonable and proportionate in all the circumstances particularly having regard to the opportunities given to the Complainant in the past to improve his behaviour and which he had not availed himself of. The Complainant had previously been issued with a final written warning. The Complainant was also advised of his right of appeal the decision to dismiss him summarily to a Rights Commissioner. It was not possible to facilitate him with an internal appeal because the company has a small management team, the Court was told. Finally, the Respondent submitted that the Complainant had not made sufficient effort to mitigate his loss in the period following his dismissal. In particular, the Respondent questioned why the Complainant chose to work as a taxi driver rather than seek employment in an Indian restaurant when there is currently a high demand for such chefs and for chefs generally.

Respondent’s Witnesses and Evidence Adduced

The Court heard evidence from the following witnesses on behalf of the Respondent: Ms Yvette Fidgeon MD of the Respondent company since 2010; Ms Samantha Plant, MD of Paramount HR; and Mr David Shortall, Area Manager with the Respondent.

Ms Fidgeon gave evidence in relation to how the Respondent dealt with the bullying allegations raised by the Complainant in December 2014 by appointing Paramount HR –the Respondent’s HR advisors since 2007 - to investigate those allegations. She stated that the Respondent took these allegations very seriously and in particular the Complainant’s claim that he felt that his life was in danger. Ms Fidgeon told the Court that she and a colleague, Mr Seamus O Suilleabhain, conducted a second investigation into those same allegations during which they interviewed all the Ashtown personnel. She also gave evidence in relation to 5 further allegations that were put to the Complainant regarding his conduct during the period he was relocated to the Rathfarnham branch of the Respondent’s business. Having conducted this investigation – in the course of which each of the allegations was clearly explained to the Complainant and his union representative, according to Ms Fidgeon– she and Mr O Suilleabhain recommended that a disciplinary meeting should go ahead and this should be led by Mr David Shortall who had no previous dealings with the Complainant. She told the Court that Mr Shortall had only recently taken up employment with the Respondent at the time and was still familiarising himself with the company’s HR policies and procedures and for that reason she requested Paramount HR to provide him with guidance and support in relation to the disciplinary process.

Ms Samantha Plant is the Managing Director of Paramount HR. Her evidence to the Court is that Ms Fidgeon had requested her personally to carry out the investigation into the allegations raised by the Complainant. In response to this request she prepared terms of reference for the investigation. However, she became indisposed for personal reasons and a colleague of hers, Ms Cushen, conducted the investigation and authored the report. Ms Plant says she was not involved in drafting the report. She did, however, interview the manager against whom the bullying allegations had been levelled and gave the minutes of that meeting to her colleague. She conducted this interview because Ms Cushen was taken up with other work on the day for which the interview had been scheduled. Ms Plant was emphatic in her evidence to the Court that she merely provided HR support and employment law advice to Mr Shortall during the course of the disciplinary hearing. This evidence appears to be fully at odds with the Respondent’s letter of 3 April 2015 signed by Mr Shortall (see below); with the notes of the disciplinary meetings conducted with the Complainant and with the final dismissal letter, a copy of which was submitted to the Court. The notes clearly record Ms Plant directly asking the Complainant a number of questions during the course of the meetings and the letter contains her signature. When queried by the Court in relation to these apparent anomalies in her evidence, Ms Plant was evasive and unforthcoming in her replies. The Court, for this reason, regards Ms Plant’s evidence as wholly unreliable.

Mr Shortall told the Court that he had joined the Respondent company as Area Manager in February 2015. He had little or no interaction with the Complainant prior to being appointed to conduct the disciplinary meeting. He stated in evidence that as he had no prior knowledge of the allegations against the Complainant he requested to see the entire file prior to conducting the disciplinary. He also liaised with Ms Plant in relation to legal issues and to familiarise himself with the relevant company policies. The witness went on to tell the Court that he (and he alone) wrote the letter of 3 April 2015 advising the Complainant that: “The Company Bombay Pantry has appointed a disciplinary panel, consisting of Mr David Shortall Area Manager Bombay Pantry, and Ms Samantha Plant from Paramount HR Solutions.” [This statement appears to be completely at odds with Ms Plant’s evidence to the Court in relation to her role in the process.] For the same reasons as stated above in relation to the credibility that attaches to Ms Plant’s evidence about her role in the disciplinary hearing, the Court finds that Mr Shortall’s evidence in this regard is equally lacking in credibility.

Mr Shortall’s letter of 3 April 2015 went on to advise the Complaint that he would be afforded an opportunity, on 9 April 2015,

“to reply to the disciplinary panels (sic) six findings below:

1: Vexatious pattern of behaviour, and misuse of the company’s grievance and disciplinary policies and procedures.

2: Breach of Dignity and Respect in the workplace policy – Harassment and excessive monitoring of employees and management in the workplace.

3: Breach of Time and Attendance policy.

4. Continuous Insubordination – to all management up to and including Managing Director level.

5: Abusive Language and defamatory tone towards the company especially in the written word. The contents of which accuse the management of incompetence.

6. Insubordination with the definition being “possessing a disrespectful attitude and generally causing an atmosphere of unrest.”

By any standard, the list of allegations which the Complaint was advised in that letter he would have to meet is most extraordinary. As stated previously, Mr Shortall was adamant that he drafted the letter himself without any external input notwithstanding his earlier testimony to the effect that he was in receipt of HR and employment law advices throughout the process from Ms Plant. The Court was particularly perplexed regarding allegation number 6. When questioned about it, Mr Shortall informed the Court that he had taken the wording from a previous disciplinary process he had been involved in while at his previous employment. He added that, in his mind, it adequately summarised allegations 1 to 5.

In any event, the disciplinary meeting was held on 9 April 2015. The Complainant was accompanied by his Trade Union representative, Mr Dorda. Contrary to Ms Plant’s direct evidence and that of Mr Shortall, it is patently evident from the notes of the disciplinary meeting that Ms Plant played a most active part throughout the entire meeting. For example, the note opens with the following statement: “SP opened by stating this was a very serious situation ….”. Later in the notes one reads the following: “SP and DS said they could see a pattern of behaviour …”; “SP asked could RY respond …”; “SP explained the HR Summary was a background of RY file …”; “DS and SP responded ….”; “SP challenged when this instruction was given ….”; “SP questioned why RY was noting down if Ray is late”; “SP explained that RY complaint …”; “SP asked RY if ….”; “SP and DS agree to highlight points in investigation …”.

Furthermore, Ms Plant emailed Mr Dorda and the Complainant on 13 April 2015. The concluding paragraph of her email reads: “Can you let me know by tomorrow at 14:00 if you wish to amend your responses. If you do myself and David Shortall the disciplinary panel will reconvene deliberations tomorrow evening and respond to you on Wednesday.” There is no doubt in the Court’s mind but that Ms Plant played at least an equal part in the conduct of the disciplinary process and in making the decision to dismiss as that played by Mr Shortall – notwithstanding her repeated and express direct sworn testimony to the contrary.

The Court’s belief in his regard is borne out by the language used throughout the letter entitled “Dismissal for Gross Misconduct” which issued to the Complainant on 23 April 2015. This letter is written in the first person plural and signed by both Mr Shortall and Ms Plant. The following are relevant extracts from the letter (emphases added):

“Further to the Disciplinary Hearing held on 9^thApril 2015 …..Weare writing to confirm/inform you of the decision that has been madeby the Disciplinary Panel…..

The matter(s) of concernto uswere:

(As explained in our company handbook section 12.8)

• 
  •Gross insubordination.

  •Misconduct, threatening or abusive language to a company official, including defamatory observations of company policies or officers of the company.

As your actions amount to gross misconduct as listed above, you are summarily dismissed as [of] April 23^rd, 2015 and will not return from suspension …..

You have the right to appeal againstour decision. Should you wish to do so you should appeal to the Labour Relations Commission Rights, (sic) Commissioner Service.”

Complainant’s Submission

The Complainant’s appeal is grounded on a claim that the disciplinary process was flawed and did not accord with the principles of natural justice. He also submits that the sanction of dismissal was disproportionate and unreasonable.

Counsel for the Complainant drew the Court’s attention to Ms Plant’s involvement both in the investigation of the bullying complaints the Complaint had raised against his former manager (in so far as she drew up the terms of reference for that investigation and interviewed the manager) and in the disciplinary process and decision to dismiss the Complainant summarily.

Counsel also submitted that the allegation that the Complainant’s complaints of bullying and harassment by his manager were vexatious only emerged as part of Paramount HR’s findings. These allegations had not previously been raised by any colleague or by any witness interviewed in the course of the investigation. Likewise they did not form part of Paramount’s terms of reference. Counsel accepted that the Respondent’s “Complaints Procedure for Dignity and Respect Issues” (at paragraph 10.6) deals with “false/nuisance allegations” in the following terms: “Deliberately making false accusations, if proven, will result in the imposition of the appropriate disciplinary action to (sic) the complaining party.” Counsel emphasised that nowhere in the policy is the term “vexatious complaint” referred to and submits that the finding made by Paramount HR and the subsequent disciplinary charge against his client in this regard is unwarranted and ultra vires the Respondent’s policy.

Thirdly, Counsel drew the Court’s attention to the inconsistencies throughout the Respondent’s correspondence with the Complainant with regard to the allegations he was required to meet. The Complainant was invited - by letter dated 27 February 2015 - to attend a disciplinary investigation meeting. The purpose of that meeting was stated as follows:

• “This meeting will be in relation to the recommendation/findings in the investigation report issued by Paramount HR on January 29^th….

  Continued repeated tone and content of correspondence to management team.”

These matters were purportedly investigated by Ms Fidgeon and Mr O Suilleabhain at a meeting that took place on 11 March 2015 where the Complainant was accompanied by his trade union official, Mr Dorda. The note of the meeting made by the Respondent opens with the following sentence:“Rajesh (sic) complaints were fully investigated by Paramount and their conclusions have been accepted by Bombay Pantry as independent investigators.”If the conclusions – including the conclusion to the effect that the Complainant’s allegations of bullying by his manager had been vexatious – were already accepted by the Respondent prior to the meeting on 11 March 2015, what then was being investigated by the Respondent in this regard at that meeting?

The outcome letter following the meeting of 11 March 2015 and issued on 26 March 2015 makes reference to certain admissions made by the Complainant in the course of the meeting to the effect that he had kept a regular diary of events that happened in the workplace and including during his temporary transfer to the Rathfarnham branch. It appears that the Respondent instigated a second and separate disciplinary investigation in relation to matters connected with the Complainant’s keeping a diary and in relation to formal complaints he had raised while in Rathfarnham and his time-keeping while there. These matters were investigated on 25 March 2015. The Executive Summary of both investigatory meetings – authored by Ms Fidgeon and Mr O Suilleabhain and dated 26 March 2015 – concluded as follows:

“The investigation panel uphold (sic) the independent report by Paramount HR that we do not believe Ray McGuinness (sic) action constitutes ‘Regular Mental Bullying & Harassment encouraged by the Management team.’

As a result of this further investigation into the complaint raised the investigation panel also upholds and confirms Paramount HR (sic) findings of Rajesh may constitute vexatious claims.”

It goes on to state:

“The conclusion of the investigations is summarised below.

• 
  •The panel finds Rajesh may be in breach of the Company Dignity and respect policy section 9.1 employee handbook harassment and excessive monitoring.

  •The panel find Rajesh is in breach of the time and attendance policy 3.3 employee handbook.”

Counsel further submitted that the dismissal letter issued to the Complainant on 23 April 2015 (signed by both Mr Shorthall and Ms Plant, as noted above) makes reference to matters that appear nowhere in the report of either disciplinary investigation. That letter states as follows:

“The matter(s) of concern to us were:

• 
  •Gross insubordination.

  •Misconduct, threatening or abusive language to a company official, including defamatory observations of company policies or officers of the company.”

Discussion

The Court has serious concerns in relation to the manner in which the allegation of having made vexatious bullying complaints against his manager came to be levelled against the Complainant and included in the findings of the bullying investigation conducted in December 2014 and January 2015. Ms Fidgeon was unable or unwilling to offer any explanation to the Court as to how this came about. Ms Cushen – the alleged author of the report on behalf of Paramount HR – was not produced as a witness. Equally, the Court deems it wholly inappropriate and at odds with best practice and natural justice that Ms Plant who interviewed the Complainant’s manager (against whom the Complainant had made serious allegations of bullying) should then subsequently play a key role in the disciplinary process in which it was alleged, inter alia, that the Complainant’s allegations of bullying were vexatious. Furthermore, it is apparent from the documentation opened to the Court by counsel for the Respondent that there is little or no correlation between the disciplinary allegations which the Complainant was called on to meet and the findings made against him and on which the Respondent relied to justify his summary dismissal. This is apparent when one compares the contents of the dismissal letter with the letter setting out the matters which were to be considered in the course of the initial disciplinary investigation.

Finally, the Court is of the view that the sanction of summary dismissal would have been wholly disproportionate even had the allegations actually raised against the Complainant been upheld following a fair and objective disciplinary process. It follows that such a sanction is absolutely without justification having regard to the Court’s findings in relation to the manifestly unfair manner in which the disciplinary issues emerged and were treated with in this case.

Determination

Having regard to the totality of the evidence adduced by the parties, the Court determines that the Complainant was unfairly dismissed by the Respondent. The appropriate remedy in the circumstances - having regard, in particular, to the evidence adduced in relation to the Complainant’s efforts to mitigate his loss - is compensation in the amount of €25,000.00.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
30th August 2016______________________
JKDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.