ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004038
Complaint(s)/Dispute(s) for Resolution:
Act
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
CA-00005849-001
14/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
CA-00005849-002
14/07/2016
Date of Adjudication Hearing: 06/02/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Act, 1977 and /or Section 11 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
I was dismissed on 20/5/2016 following a complaint made (on 25/03/2016) by a colleague, the details of which were incorrect and untrue.
The management did not follow their own disciplinary procedures; they acted unfairly, in a biased and pre-judgmental fashion and in a disproportionate manner. I believe I have been unfairly dismissed.
My termination was made by letter dated 23/05/2016 stating termination was without notice and effective from 20/05/2016.
Summary of Respondent’s Submission and Presentation:
On the 25th March 2016 a female employee made a complaint against the Complainant regarding an incident that was alleged to have taken place on the 12th March 2016. The incident was alleged to have taken place in an elevator in the Airport premises.
The incident was fully investigated by Manager A. This involved Manager A initially meeting with the lady who made the complaint and meeting with the Complainant. A full Investigation meeting was arranged for 21st April at which the Complainant was represented by SIPTU.
Following discussions with SIPTU, Manager A excused himself from the process and was replaced by Manager B. Manager B then took over the Investigation.
This concluded in a reference of the issue by Manager B to a Disciplinary hearing on the 18th May.
This Disciplinary meeting was chaired by Manager C which concluded, after consideration, that the Complaint be summarily dismissed for gross misconduct.
An Appeal Hearing was arranged for the 10th June, this was chaired by Manager D. To allow for viewing on CCTV the hearing was adjourned to the 24th June 2016. The outcome of this hearing was that the Dismissal decision was upheld.
The Respondent argued that the incident in the elevator amounted to gross misconduct. The young lady felt harassed and upset. The Code of Conduct on Sexual Harassment was referred to . The key point being that it was the impact on the victim that was crucial not the motivations of the perpetrator.
The Complainant was a Manager who was well ware of all Company rules and procedures. In specific regard to Sexual Harassment, he had been the subject of proceedings in 2015 which apparently had been dismissed for lack of evidence. From this process he would have been especially aware of the standards required in this area.
The actions in the elevator amounted to gross misconduct and were a serious breach of trust and confidence in the Complainant.
All proper procedures and paperwork were followed. Full representation rights were afforded to the Complainant at all stages.
Accordingly the Dismissal is fair both procedurally and substantively.
Decision:
Section 41(4) of the Workplace Relations Act 2015 and or Section 11 of the Minimum Notice & Terms of Employment Act, 1973 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
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.
Issues for Decision:
Did an Unfair Dismissal take place and were the guidelines in SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures followed.
Were the rules of natural justice followed?
Legislation involved and requirements of legislation:
Unfair Dismissal Act, 1977 and SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures.
Decision:
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
CA-00005849-001
Summary Dismissal after seven years employment was a major sanction and has to be considered carefully.
It is well established law and precedent from the EAT that the function of a Tribunal or in this case an Adjudicator is not to reinvestigate incidents almost “de novo” that lead to a dismissal. The Respondents helpfully quote from Looney and Co Ltd v Looney UD 843/1984 in this regard.
The focus of the Adjudicator must be on the rules of natural justice as effectively set out in SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures.
A key element of this is how evidence was handled and gathered.
Section 6 and 7 of Si 146 are quoted below.
6. The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:
• That employee grievances are fairly examined and processed;
• That details of any allegations or complaints are put to the employee concerned;
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.
7. These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.
The facts of the case were largely agreed – the Complainant openly admitted from his first meeting with Manager A that he had “hugged” the young lady in the elevator. The case then largely revolved around how this incident could be interpreted and CCTV of incidents in the elevator became crucial.
However at the first formal Investigation meeting Manager A excused himself from the process because of possible bias issues raised by SIPTU.
Manager B then takes over the investigation but it is agreed failed to interview the young lady who made the Complaints. An effort was made to contact the young lady but it appears was never followed up on.
In a situation where an allegation of bias has been made by the Complaint’s Trade Union and a Manager has already excused himself on this basis the Manger taking over the Investigation has a duty to be extra scrupulous in her investigations. Not personally interviewing the young lady is a serious shadow over the Investigation.
This was surprising, as In a situation where there had already been an incident in 2015 where evidence or lack of same was a key factor, the Respondent must have been aware of the need to establish and clarify all evidence. As interpretation of the elevator incidents was crucial the Investigator (Manager B) should have, at minimum, interviewed the young lady.
The Complainant submitted the names and statements from a number of other staff members. These were largely of a character nature but did refer to the degree of prior knowledge that may have existed between the young lady and the Complainant. The young lady denied that there had been any prior contact other than a very brief meeting while she had served food to the Complainant.
The witnesses should have been interviewed during the investigation to establish if there was prior contact/knowledge between the parties even if only to exclude this argument.
The Complainant offered in mitigation that a culture of “Hugging” between staff was common place and that the action of hugging the young lady had to be seen in this context. Follow up on the statements from the staff members on this point, again if only to dismiss this claim as a possible spurious fact would also seem to be crucial here.
The Complainant’s union, SIPTU, maintained that they and or the Complainant had never been afforded an opportunity to personally interview the young lady and or put their side of the case to her.
I accepted the fact that the lady was an 18 year old student and a high degree of consideration had to be afforded to her.
However the ultimate sanction of loosing his employment was in the balance for the Complainant. Some form of controlled interviewing / examination of evidence and accompanied by friends or possibly parents of the young lady should have been afforded to the Complainant.
The Appeal Hearing Manager, Manager D, did speak to the young lady and the notes of the conversation of the 27th of June 2016 seemed to indicate a proper attempt to establish the facts of the initial complaint. However the opportunity to allow the Complainant put his interpretation of events to the young lady did not arise.
Accordingly and in summary the key facts appeared to be
1. The Complainant had admitted from the start that he hugged the young lady. The CCTV footage, while subject to some interpretation, appeared to confirm this.
2. Manager A excused himself to avoid accusations of bias – Manager B who took over did not interview or meet the young lady who had made the complaint. I could not understand why more of an effort was not made by Manager B to contact the young lady
3. Witnesses or colleagues giving views on the alleged “Hugging Culture” in the Company were not interviewed.
4. The Complainant was never afforded the opportunity, even in a controlled manner to face the young lady or failing this to have his views put to her by a representative even if a face to face meeting might have been too upsetting.
5. The Respondent at all times followed proper procedures in regard to meetings, notes etc. Detailed investigations did take place and all notes minutes are available and have been exchanged.
In conclusion I came to the following decision
Procedurally a good investigation had taken place but was, in my view overly reliant on the CCTV and the initial open admission by the Complainant of hugging the young lady. It did not reach the very high standard required to justify depriving the Complainant of his Managerial job.
However the evidence clearly pointed to actions of an inappropriate nature –the Complainant had openly admitted “hugging” the young lady. As a Manager he was fully aware of the “ boundaries” that one did not cross in relation to matters of this nature.
He could not be described as blameless.
In framing my Redress decision below, based on a largely procedurally flawed dismissal, I was very conscious of this fact.
Accordingly as Redress I direct that the Complaint be Re-engaged as provided by Section 7. 1 (b) of the Act with effect from four weeks post the date of this decision. The relevant section is quoted below.
7:1(b)
( b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances.
To avoid all doubt Re-instatement in his exact former Managerial position ( which was the Complainant’s claim) is not being ordered and is not deemed appropriate taking in mind what is “just and equitable taking all the circumstances of the case” into account. Again for clarity the loss of remuneration for the period from the dismissal to the reengagement date is to the Complainant’s account only. No financial liability is to attach to the Respondent for this period.
The Complainant’s written and oral submission clearly stated that Re-instatement was the preferred option although the claim form had indicated all three options.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
CA-00005849-002
As a remedy of Re-Engagement has been directed payment of Minimum Notice does not arise.
Dated : 19 April 2017