ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000381

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

Date of Adjudication Hearing: 01/02/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

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.

Attendance

An Office Administrator and a Community Arts Centre

Background

The complainant was employed from 30^th October 2013 to 4^th September 2015 as office administrator in a community services organisation. Her rate of pay was €2,500 per month. The selected remedy of both parties was compensation. The complaint was received by WRC on 30^th October 2015. There were three hearings in the WRC; on the 8^th March 2016, 27^th October 2016 and 1st February 2017. A complaint under the Employment Equality Act was withdrawn at the hearing which took place on the 8^th March 2016.

Respondent’s Submission and Presentation:

The respondent provided a detailed written submission.

In the submission the respondent stated that the complainant had not been unfairly dismissed. That the complainant had been dismissed for gross misconduct in line with section 6 (4) (b) of the Unfair Dismissals Act.

In the submission the respondent put forward some background to the case. Investigations involving the complainant indicated concerns which necessitated inviting the complainant to a Disciplinary Hearing on the 24May 2015 regarding:

The submission outlined that the complainant was provided with all the evidence gathered during the investigation stage, was afforded the right to representation and that the hearing was minuted.

The respondent wrote to the complainant on the 7 of August. This letter dealt with each matter in detail. The complainant's actions were found to be gross misconduct and the complainant was dismissed.

The complainant appealed the decision and an appeal hearing took place on the 28^th August 2015. The complainant had the right to representation and the meeting was minuted. The original decision to dismiss was upheld.

The respondent's submission puts forward the view that the dismissal was fair and in line with section 6 (4) b of the Unfair Dismissal Act.

The respondent called a number of witnesses to give direct evidence.

The first witness for the respondent was an independent Human Resources who had made the decision to dismiss the complainant. The witness stated that she had many years' experience in the HR arena and was a barrister. Prior to this matter she had no link to nor had she ever heard of the respondent. She had been asked to chair the disciplinary hearing because the respondent did not feel that there was anyone suitable within the organisation who could take on that role. The HR consultant stated that she had made the decision to dismiss based purely the investigation, the company handbook and the evidence presented to her. The hearing had taken about an hour and the complainant was represented by her partner.   Although the HR consultant was accompanied at the hearing by another member of management it was she and she alone who had carried out the hearing and she, without the influence of others, had made the decision to dismiss.

The witness then gave considerable evidence about how the disciplinary hearing had proceeded. She stated that she had considered lesser sanctions than dismissal but having gone through all the evidence and the hearing she felt there was no alternative.   A Final Written Warning was not given because the complainant had not said she would stop (doing what had caused the difficulty) and because the breach was so significant.

The HR consultant was aware that a grievance had been raised by the complainant but she had specifically asked not be informed about this matter. It was her opinion that the complainant had breached the bond of trust repeatedly through her employment. The witness stated that the fact that the complainant was pregnant at the time had nothing to do with the dismissal.

In cross examination the HR consultant agreed that the charge of "failure to devote the whole of your time, attention and abilities to our business and its affairs during normal working hours", as stipulate in the Employee Handbook is categorised as Major Misconduct, not Gross Misconduct. When asked if she had failed to differentiate between the two she agreed that she had, but that these were only guidelines and looking at the totality of the evidence dismissal was warranted.

In relation to the temporal connection between the complainant's raising of a grievance and the disciplinary action the HR consultant agreed that they were very close but that in the matter of the disciplinary action she had only considered the breaches of discipline, she had not been involved in the grievance and that she had been as impartial as possible. She stated that she had gone into the disciplinary hearing with an open mind; her task was to make a decision on what she heard.

In regard to the letter inviting the complainant to the disciplinary hearing, which was signed by the person against whom the complainant had raised a grievance, the HR consultant agreed that it was not best practice but it is not always possible to do things differently and that the complainant would not have known who the author of letter was if it had come from her.

In response to questions about her commencement with the respondent the HR consultant stated that she had been contacted by the respondent after the report had been done, it was being typed up and that she had been lined up just in case. Having read the investigation report the HR consultant felt a disciplinary hearing was merited. At the hearing the HR consultant was accompanied by another manager, but this person was there to assist and it was her opinion that it was not inappropriate she be there.

In conclusion the HR consultant stated that it was her decision to dismiss the complainant. She did not agree that this sanction was excessive and disproportionate. It was her view that having looked at the evidence the breaches were so severe, irrecoverable that they amounted to gross misconduct and thus warranted dismissal.

The next witness called was the Acting Executive Director and General Manager (GM). The GM explained the background to the organisation's structure and how the complainant's use of email for non-work activities came to light. Following an initial investigation a decision was made to suspend the complainant. Having investigated the matter thoroughly it was her opinion that the issue would need to go to a disciplinary hearing. It seemed the complainant had other outside interests and although some other members of staff had outside interests these had been noted on file.

In cross examination the witness was asked if she thought it appropriate that she should be writing to the complainant about a disciplinary hearing a week after the complainant had raised a formal grievance against her. The GM said that the organisation had received advice on this matter before she had done so.

The witness stated that the complainant had been suspended on full pay while proceeding with the investigation, so the investigation could proceed unhindered. She agreed that such a suspension could create reputational damage for the complainant.

When asked if she thought it appropriate that she, the subject of a formal grievance complaint from the complainant, should have been at the disciplinary hearing, she responded by saying that she was only there to help the HR consultant regarding the investigation. The witness pointed out that she was the only person able to assist as there is only a small team.

The next witness called was a volunteer Board member who heard the appeal of the decision to dismiss. The witness stated that she knew the complainant was pregnant at the time of the dismissal. At the appeal the witness had asked the complainant if she had any new evidence relating to the disciplinary issues. No new evidence was produced. In relation to the sanction it was the witness's view that it was black and white; you are either are or are not in competition, are or are not making money.

In cross examination the witness stated that she did had no experience of hearing appeals of a decision to dismiss. When asked about the phrase black and white, the witness stated that post appeal it was black and white. She had asked the complainant to provide evidence that she was not running her own businesses and it was black and white that she was competing.

The witness said the appeal hearing had been a warm meeting and that she had allowed the complainant talk on matters not directly linked to the disciplinary issue. The outcome of the appeal was sent to the complainant as this was an efficient way of letting her know the result.

When asked about the proportionality of the sanction the witness said that she could not overrule the disciplinary decision as no new evidence had been given to hear by the complainant, there was nothing that would overrule the finding of gross misconduct.

In concluding remarks the respondent's representative put forward that that there had been no breach in due process, that no right was denied to the complainant. The fact that the respondent appointed a truly independent third party to carry out the disciplinary hearing highlights the lengths the respondent went to ensure the complainant got a fair hearing.

With regard to proportionality the representative pointed out that working in competition is categorised as gross misconduct and breaches trust; even if it is a small amount it is not ok. Working in competition at all breaches trust.

Complainant’s Submission and Presentation:

The complainant gave evidence. At the outset she explained how she had applied for and had got the job with the respondent. At interview she had mentioned some of the work she did with other organisations, however she did not specifically mention her own businesses.

She had many duties and worked hard. She utilised her experience of Social Media to enhance the respondent's profile. She had mentioned her outside work to her direct manager but that woman had left the organisation some time ago. Other staff also knew about her outside business. It was her view that her business outside of her employment did not conflict with the services provided by the respondent. Others in the organisation were doing outside work which in the complainant's view were more in conflict.

The witness stated that all had been going well until February 2015 when she told the incumbent Executive Director (who is no longer in post and who was not available at the hearings to give evidence) that she was pregnant. The complainant outlined that after the announcement things became very formal and she was not given any support in relation to work and her pregnancy.

The complainant felt she was being unfairly treated and she raised a formal grievance. The complainant met with the General Manager to discuss the grievances raised and shortly afterwards was written to by the General Manager suspending her pending an investigation into her outside interests. The complainant did not think there was any reason why she should be suspended. She was also surprised to find out that the General Manager about whom she had raised a grievance was doing the investigation into her outside interests.

In relation to her outside business the complainant stated that she spent very little time on that work and that she never spent work time working on that business. The complainant explained that she could schedule posts for her business to come up at any time, so it might look as though they had been put up during work time. She agreed she had printed off a small number of documents and had also sent some emails pertaining to her business while at work. She stated that she does not provide similar services to those provided by the respondent. No one else was tackled about working outside work according to the complainant.

When asked about the disciplinary hearing the complainant said she had felt uncomfortable during it. She felt the whole disciplinary process was done in a whirlwind fashion and that she had been dismissed without a fair trial.

The complainant stated that she felt the Appeal Hearing was held in an unprofessional fashion and that she was not listened to when giving her side of the story. It was her view that getting an email with the result of the appeal was unprofessional, it was if she had not been considered.

Since January 2016 the complainant has been looking for work but as of the date of the hearing had not found a job. She has applied for many jobs and attended two interviews.

In cross examination the complainant stated that her outside businesses predated her start date with the respondent. The complaint refuted the suggestion that she had tried to hide her involvement in outside businesses. When asked about a claim on claim that this was the "best CV service", the complainant replied that she had decided this herself. She agreed that one of the businesses showed she had 1,000 followers but stated that it was easy to get followers. She also agreed that she had attended a social media business networking group meeting and had distributed her business cards at it. With regard to a potential conflict between her businesses and the services provided by the respondent the complainant was adamant that there was no conflict; she only did one to one work whereas the respondent provided training for classes. Also she would go to people's homes which the respondent did not do.   When asked if her outside businesses, notwithstanding the volume of work she was getting, amounted to a breach of trust, the complainant responded by saying that everyone knew, although she agreed there were no witnesses to support this.

The appearance of a photo of the complainant on Facebook was questioned. The complainant said she was on her way to hospital when the photo was taken but the caption used was that she was on her way to class. The only person who had "liked it" was her mother. When asked why she did not mention this at the disciplinary hearing the complainant stated that she always tries to make things up on social media.

In response to a question relating to the use of a land address on one of her sites the complainant replied by stating it was just an address, that there was no premises there at all, and that a letter sent there would have gone nowhere.

Regarding the investigation which led to the disciplinary action the complainant state that she felt it was unfair in that she was facing the person against whom she had made a complaint. She felt unsupported but agreed that she had had representation.

When asked why, she had denied she was running an outside business the complainant replied that it had been put to her that she was running a successful business, but she had only been doing it for the love of it.

Regarding the appeal process the complainant said she felt she got no support and that the decision had already been made.

In concluding remarks the complainant's representative put forward that this was a blatant case of unfair dismissal; procedural fairness was lacking and there were no substantive grounds justifying the decision to dismiss.

In regard to procedural matters the representative argued that the use of staff, against whom grievances had been raised and who had carried out the investigation in the disciplinary process was unfair. A reasonable employer would have ensured a clear separation.

It was suggested that all had been going well until the complainant had announced she was pregnant. This produced a hostile reaction and led to a series of escalating interpersonal interactions between the complainant and her manager. In the end, according to the representative, the complainant was subject to a trumped up disciplinary charge with a pre-ordained outcome.

The complainant's representative then went on to outline what he believed to be defects in the process; was it fair that someone against whom a grievance had been raised should suspend the complainant and then carry out an investigation, the appeal was carried out by someone who had never heard an appeal before.

In regard to the proportionality of the sanction the representative stated that a dismissal was too much and that any reasonable employer would not have dismissed the complainant.

Findings and Reasonings

I have considered the evidence put before me very carefully. The complainant has stated that the difficulties with her employer started when she announced her pregnancy. She says that when she told her then boss, the Executive Director, that she was pregnant her reaction was patently negative. The complainant says that obstacles were put in her way relating to pre-natal care etc. As the then Executive Director was not available to attend the hearings the evidence of the complainant is uncontested.

Exasperated by the problems she was experiencing the complainant processed a formal grievance regarding a number of issues.   Around the same time that the complainant lodged her grievance the respondent commenced an investigation into alleged breaches of discipline by the complainant. The complainant believes that the opening of a disciplinary process against her at the time she lodged a grievance was more than just a coincidence, she believes the two are linked. I am not so sure, sometimes things collide in such a manner. However, the fact that a grievance process was in train at the same time as a disciplinary process was getting underway should have heightened the respondent to demands required of them in regard to natural justice.

The respondent should have been highly sensitive to the requirements of procedural justice. However, some aspects of the procedures were less than satisfactory. Allowing for the fact that this is a small organisation that the person against whom a grievance had been made carried out the investigation into the alleged misconduct was wrong. The intersection of grievance and disciplinary processes should have been avoided.

The suspension of the complainant during the investigation process, albeit with pay, was disproportionate. Suspension, even paid, should only be imposed when the needs of the situation demand it. I do not think a suspension was an absolute requirement and indicates a certain attitude towards the complainant that could be perceived as being less than fair.

The separation of the two processes should have also been clear and obvious on at the Disciplinary Hearing itself. Notwithstanding the fact that the General Manager did not play a part in the actual decision to dismiss the complainant, as attested to by the HR Consultant, that the General Manager was at the disciplinary hearing must have created unnecessary difficulties for the complainant and undermines the validity of that element of the process.

The appeal process was less than satisfactory. Dismissal is the ultimate sanction in the employment arena. An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employ the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction. In this case the person who heard the appeal had little experience in the area but more tellingly decided that the decision to dismiss should be upheld as no new evidence had been produced at the appeal by the complainant. This was unfair on the complainant. The respondent's own Disciplinary Appeal Procedure states, "An appeal against a formal warning or dismissal should give details of why the penalty imposed is either too severe, inappropriate or unfair in the circumstances." The dismissal letter also stated that the decision could be appealed if the complainant believed the disciplinary action inappropriate or too severe. To subsequently base a decision to uphold the decision to dismiss solely on the lack of new evidence at the appeal was wrong.

Reviewing the evidence in regard to the alleged breaches of discipline that ultimately lead to the decision to dismiss the complainant there is agreement between the parties that the complainant was engaged in businesses outside of her work with the complainant. The difference of opinion between the parties lies on the amount and the effect this outside work had on the respondent's own business.

The respondent provided the investigation report upon which the decision to proceed with a disciplinary process was taken. The investigation report was an impressive document and indicates that a very thorough investigation had taken place.   In evidence the respondent highlighted several print offs of website pages which indicated that the complainant had a number of businesses "on the go" at the same time she was working with the respondent. The evidence produced by the respondent indicated that the complainant was doing her own work, which was in competition with the respondent's work.

In response the complainant denied that her outside work amounted to anything worth talking about, that it was more a hobby and in some instances a work of charity. However, in cross examination the complainant was unable to provide credible explanations to a number of the allegations put to her. Her responses indicate to me that she was involved to a greater extent with her outside businesses than she might have wanted known. The answers to some of the questions put to her regarding the integrity of some of the claims made on her websites undermine her credibility. On the balance of probabilities I believe the complainant did spend some of the respondent's time working on her outside businesses.

In the course of her evidence the complainant pointed out that a number of other employees did outside work which could be construed as being in competition with the respondent's business, yet no action was taken against them. This was denied by the respondent; other employees had made know their outside work, verbally or in some instances in writing and had been given permission to go ahead with this outside work. The complainant on the other hand, according to the respondent, had kept her outside work secret. The complainant suggested that she had made inferences to her superiors that she was doing outside work but that she had never made this explicit. In my view the complainant's non-disclosure of her outside interests was deliberate. Such reticence indicates to me an understanding on the complainant's part that such a disclosure would have resulted in an admonition from her employer followed by, at the least, a demand that she stop outside work.

Issues for Decision:

In deciding on the fairness or otherwise of this dismissal a number of questions need to be answered.

In this case the complainant was dismissed because the employer felt the bond of trust between the employer and employee had been broken. The respondent stated that it was not the volume of work that mattered it was fact that the complainant was working in competition with her employer that broke the bond of trust. In reality only the parties involved in a dispute can decide if the bond of trust is broken. However, that bond should be strong enough to weather some wear and tear.

The decision to dismiss is the ultimate sanction an employer can take against an employee. Dismissal has substantial ramifications for an employee and a decision to dismiss should only be taken as a last resort, when no other sanction is possible or suitable. In this case I believe the complainant deserved a chance to set things straight. A Final Written Warning based on a direction to desist from all outside work that could be deemed to be in conflict with the respondent's services would have been appropriate. If the complainant decided to disregard the demands of such a Final Written Warning and continue with outside work then she would have to face the consequences.

An employer is bound to show not only had he substantial grounds justifying dismissal but also that he followed fair and proper procedures before dismissal. In this case I believe there are a number of procedural faults which undermined the procedures, the faults are explained above. In brief, the intersection of grievance procedures and disciplinary procedures and the less than satisfactory appeal process combine to make the overall procedures unfair.

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.

In the circumstances outlined above I find that dismissal was disproportionate and the procedures were unfair, thus the respondent did not act reasonably in dismissing the complainant.

The complaint is upheld.

The complainant has been available for work since January 2016. She has attended a number of interviews and registered with employment agencies but has thus far been unsuccessful in her search for employment. The complainant has made some money from her businesses but it is not lucrative.

As I believe this to be an unfair dismissal I am of a mind to award the complainant compensation. Taking into account some contribution towards her own dismissal, based on a monthly salary of €2,500, I award the complainant six months' pay equalling €15,000.

Dated:   12^th April 2017