ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002281

Complaint for Resolution:

Venue: Ardboyne Hotel, Navan, Co. Meath

Date of Adjudication Hearing: 23/11/2016

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

In accordance with 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.

Background:

The Complainant was employed as an instructor from the 21^st of February 2011 to the 21^st of December 2015. She was paid at the rate of €12 per hour. She alleges that she was unfairly dismissed without due process or fair procedures contrary to the terms of the Unfair Dismissals Act, 1977. She filed a complaint with the Workplace Relations Commission on the 7^th of March, 2016.

Respondent’s Submission:

The following is a summary of the Respondent’s submission:

On the 21^st of October 2015 the Complainant with her colleague M.O., met with the Respondent. The Complainant advised the Respondent that she intended to commence teaching fitness classes at a premises in Kilcullen. The Respondent indicated that he had no difficulty with the Complainant doing so provided certain conditions were met. These conditions included; that under no circumstances should she advertise to members of the Respondent company, bring fliers to work, or ever wear promotional material at her place of employment.

The Respondent subsequently became aware of allegations that the Complainant had been promoting and advertising her new business on the company premises and was also soliciting her employers members to join her new club despite having been made aware that such actions would be in breach of her contract of employment. Her contract of employment clearly states;

“During your employment you will not be directly or indirectly engaged or concerned in the conduct of any activity which is similar to or competes with any activity carried on by the company or which impairs or might reasonably be thought by the company to impair your ability to act at all times in the best interest of the company.”

In light of this apparent breach of her contractual terms and conditions, it was decided on the 11^th of November, 2015 to immediately suspend the Complainant pending an investigation into the allegations. The Complainant was subsequently invited to a meeting on the 16^th of November 2015, which she declined to attend due to the short notice given and a hearing was rearranged for the 19^th of November which was attended by the Respondent and RF as well as the Complainant and her colleague AN. At this hearing a number of questions were asked of the Complainant, wherein she acknowledged inviting friends to the opening of her new club in Kilcullen, as well as bringing promotional material for the business onto the company premises and also using images of the company to promote her own business. Following this initial hearing, the Complainant was invited to a second meeting in the 24^th of November 2015, with a view to closing the disciplinary process and informing her of the company’s decision surrounding the allegations made. The Complainant was informed during this hearing, that she was being dismissed on the grounds of gross misconduct and this decision was confirmed in writing to her by the Respondent.

The Complainant appealed the decision and a hearing was held on the 4^th of December 2015, which was chaired by DM. The Complainant was subsequently informed that her appeal was not upheld.

In light of the serious nature of the allegations made against the Complainant and given that the Complainant’s actions breached company guidelines set out in her contract of employment, the Respondent had no alternative but to dismiss the Complainant from her employment on the grounds of gross misconduct.  

Company Case

The Complainant was setting up a new business, the activities of which were in direct competition to those of the Respondent Company. The Complainant acknowledged advertising and promoting same at the Respondent premises contrary to her contractual obligations and specific instruction from her line manager.

The Complainant was afforded fair procedures throughout the investigatory process. The Complainant was allowed to present her version of events at a disciplinary hearing. She was afforded the opportunity to appeal the disciplinary sanction and was given the opportunity to be represented on both occasions.

The Complainant suffered no financial loss as she obtained alternative employment on the 16^th of November 2015.

Complainant’s Submission:

The following is a summary of the Complainant’s submission.

The Complainant and her colleague met with the Respondent on the 21^st of October 2015, to advise him that they intended to commence fitness classes at a premises in Kilcullen. The Respondent indicated that he had no difficulty with the Complainant doing so provided certain conditions were met.

On the 11^th of November 2015, the Respondent wrote to the Complainant that

“It has been drawn to my attention by members of staff that you have been promoting and advertising your new business venture in the Respondent Company and soliciting members to join your club.”

In addition the Respondent also wrote;

“Because you are in breach of the terms of your contract of employment and to allow me to fully investigate the circumstances surrounding the reports I’ve received from members of staff, I am suspending you from duty immediately from the date of this letter.”

The Complainant was suspended without pay and she was not informed whether the suspension was with or without pay. On the 17^th of November 2015 the Respondent wrote to the Complainant requesting her to attend a disciplinary hearing on the 19^th of November 2015. On the 18^th of November 2015, the Complainant e-mailed the Respondent stating that she wished to have the identities of the individuals and dates regarding statements that were made by a number of staff alleging that the Complainant had been promoting and advertising her business at the Respondent’s premises. The Respondent failed to provide this information.

On the 19^th of November, 2015 the Complainant attended the disciplinary meeting with the Respondent. She was asked whether she remembered the conversation concerning restrictions on advertising and soliciting the Respondent’s members which she confirmed she did. She stated that she only invited friends and staff members to the opening of her business. She also stated that she kept some promotional material for her business in her bag. She also stated that she did distribute leaflets to staff members but that she did not distribute leaflets to the Respondent’s members.

On the 24^th of November 2015, the Respondent wrote to the Complainant indicating that he did not believe her. He stated that he believed the written statements given by the staff members. Not one of the statements identified the Complainant as having furnished invitations to the launch of her business to a customer of the Respondent. However the Respondent concluded by stating that

“I find you are in breach of clause 3 of your contract of employment. At stage 4 of the disciplinary and grievance procedure, the sanction available to me is summary dismissal. Your actions breach a serious breach of confidentiality and failure to adhere to an agreed workplace procedure or other agreed terms of employment; both matters are considered to be gross misconduct. You were suspended on the 11^th of November 2015, and I find your contract is terminated with immediate effect on the same date.”

On the 4^th of December 2015, the Complainant appealed the disciplinary sanction. Mr. D.M. of the Respondent Company heard the appeal. The Complainant pointed out at the hearing that she had not been given a verbal warning, that she had not been given a written warning, that she had not been provided with adequate notice of the hearing, that she ought not have been suspended, that the disciplinary meeting was too short, that she was not provided with the names of the staff members who made statements adverse to her, that other members of staff had used similar marketing images but had not been similarly sanctioned. On the 21^sh of December 2015, DM dismissed the Complainant’s appeal.

Legal Arguments

The Complainant states that she was unfairly dismissed for the following reasons;

It is submitted that section 6(1) of the Unfair Dismissals Act, 1977 states that a dismissal shall be deemed to be unfair unless there are substantial grounds justifying it. As such, the onus is on the Respondent to demonstrate substantial grounds justifying the Complainant’s dismissal. The Complainant submits that she was both procedurally and substantively dismissed.

Same Investigator and Adjudicator

In Mooney v An Post [1994] 4 ELR 103 decision it was held to be a breach of the principle nemo iudex in causa sua for the same individual to be involved in the investigative and adjudicative process. Mr. D.O’C was both the investigator and adjudicator which was unfair in the circumstances where D.O’C had already predetermined the Complainant’s guilt. It is clear from the letter of suspension dated the 11^th of November 2015 that D.O’C. already believed that the Complainant had already acted in breach of her contract of employment. D.O’C’s involvement in both the investigative and adjudicative process resulted in breach of the Complainant’s right to fair procedures.

Decision to Suspend Complainant

The decision to retrospectively suspend the Complainant without pay amounted to both a breach of contract and further indication that the Respondent never presumed the innocence of the Complainant. The suspension was in reality the imposition of a penal sanction as opposed to a genuine measure intended to facilitate an objective investigation.

The Complainant’s contract of employment stipulated that

‘You may be suspended from your employment on full salary at any time, and for any justifiable reason for a reasonable period to investigate any serious matter in which you are implicated or involved (whether directly or indirectly) and to conduct any related disciplinary proceedings at which you were present.’ There was no justifiable reason for the Respondent to suspend the Complainant pending the investigation.

It is submitted that the Respondent’s decision to refuse to pay the Complainant for the suspended period is a further indication that the Respondent intended the suspension period to be a penalty as opposed to assisting in an investigation. The decision to suspend without pay amounted to the procedurally unfair position of a punitive sanction. The decision to impose this sanction was made without any opportunity for the Complainant to respond to the allegations. The Respondent’s decision to in effect back-date the dismissal to the date of the suspension further supports the Complainant’s submission.

The Decision to Dismiss

The onus is on the Respondent to demonstrate substantial grounds justifying the Complainant’s dismissal in order to constitute a fair dismissal within the meaning o the Unfair Dismissals Act, 1977.

In this regard, it is submitted that the McDermott v Kemek ltd.- Irish Industrial Explosives Ltd.[1996] ELR 233 decision is relevant. In applying the Mc Dermott decision, it is submitted that the decision of the Respondent to dismiss the Complainant was substantially unfair in all the circumstances. In particular, the Respondent made no attempt to try and resolve the situation amicably. The Respondent’s policies and procedures allow for such a situation.

It is particularly relevant that not one of the staff members who gave statements adverse to the Complainant in fact witnessed the Complainant providing leaflets to the Respondent’s customers. The decision therefore to dismiss the Complainant is another indication of the Respondent’s pre-judgement of the allegations made. The Complainant maintained that she did not distribute leaflets to staff members but did distribute leaflets to customers.

The Respondent did not need to dismiss the Complainant. He could have imposed a lesser sanction as the Respondent did not have substantial grounds justifying the sanction posed.

Failure to Provide Names of Witnesses

On the 18^th of November 2015, the Complainant wrote to the Respondent stating;

‘I write in connection with the Disciplinary Hearing and the statements which you e-mailed to me. Will you please give me the names of the people who made the statements and the dates when you received them. We would like to get the opportunity to question those people during our disciplinary hearing because there is a lot of inaccuracies in the statements.’

By e-mail dated the 18^th of November MR. D.O’C. replied stating;

‘at the first stage of the Disciplinary procedure you are not permitted to question witnesses. This stage is for information gathering. If a second stage Disciplinary Meeting is required, your right to question evidence will be part of the process.’

On the 19^th of November 2015, the Complainant attended the Disciplinary Hearing where certain matters were put to her. On the 24^th of November 2015, the Respondent wrote to the Complainant advising her that she was dismissed in her employment.

The identities of the individuals making allegations against the Complainant were only disclosed during the disciplinary hearing on the 19^th of November 2015. As such the Complainant was significantly impaired in the preparation of her defence, as the Complainant was only able to identify those making allegations against her during the disciplinary hearing.

In the Mooney decision, Barrington J stated as follows;

‘Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly the minimum he’s entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.’ This means that the Complainant must be provided with sufficient time to enable him or her to mount a proper defence.’

The decision of the Respondent to withhold the identities of the Complainant’s accusers prior to the disciplinary hearing impacted on the Complainant’s ability to properly mount her defence. In particular, the Complainant specifically requested to have the accusers’ identities disclosed, but the Respondent elected to do so only at the disciplinary hearing. This was a breach of the Complainant’s right to fair procedures.

Failure to Provide an Independent Appellate Body

The Complainant appealed the decision to dismiss her to the Operations Manager. In Quinn v Tennants (Ireland) Ltd. UD 249/1992 decision, the EAT described an appeal as compromised where a detached independent body did not hear an employee’s appeal from a first instance decision. The Complainant was denied an impartial appellate body by having to appeal to the Respondent’s Operation’s Manager.

Findings:

The onus rests on the Respondent to establish that their procedures and conclusions were fair and reasonable in dismissing the Complainant. The role of Mr. D.O’C. in carrying out both the investigation and disciplinary meeting was unfair. It is not good practise for the one person to conduct an investigation and then make a decision in the disciplinary process. This is particularly so when the same person suspended the Complainant without pay. D.O’C. should have provided to the Complainant the full reports of the witness statements including the names of the witnesses. This should have been carried out prior to the Disciplinary Hearing so that the Complainant would be in a position to prepare her defence. The Respondent did not carry out fair procedures leading to the dismissal of the Complainant.

The Complainant significantly contributed to her dismissal. The Complainant was fully aware of her duties and responsibilities while working for the Respondent. Clause 3 of her contract of employment provides under the heading ‘Duties and Responsibilities’ ‘In addition to your specified duties and responsibilities, you are required to;

(a) devote the whole of your working time, attention and skill to your employment

(b) properly perform your duties consistent with company policy

(c) comply with all rules regulations and policies issued by the company

(d) obey all lawful and reasonable directions of your manager, club manager any senior manager/C.E.O or any other designated manager or supervisor and

(e) use your best endeavours to promote the interests and reputation of the company and its business.

During your employment you will not be directly or indirectly engaged or concerned in the conduct of any activity which is similar to or competes with any activity carried on by the company or which impairs or might reasonably be thought by the company to impair your ability to act at all times in the best interests of the company.’

The Complainant was setting up a new business, the activities of which were in direct competition with the Respondent company. It is clear that the Complainant was advertising and promoting her business at the Respondent’s premises contrary to Clause 3 of her contract of employment. She should not have been carrying out any of these activities either directly or indirectly at the company’s premises.

Decision:

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.

Based on the evidence presented at the hearing, I find that the complaint is well founded in that the Complainant was unfairly dismissed without due process or fair procedures contrary to the terms of the unfair Dismissals Act, 1977.

In awarding compensation to the Complainant, I am required to take into account the fact that she significantly contributed to her dismissal by her activities in setting up her new business. Therefore having taken all of the circumstances into account, I award the complainant €4,000 in compensation for being unfairly dismissed by the Respondent. This sum must be paid within 6 weeks of the date of this decision.

Dated:   12/04/2017