ADJ-00005054

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005054

Parties:

Complaint(s):

Date of Adjudication Hearing: 02/06/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Location of Hearing: Room G.07 Lansdowne House

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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 commenced employment with the Respondent, a taxi company, on 1 May 1985 and was dismissed on 4th August 2016. At the date of his dismissal he was employed as a supervisor in the control room. His gross weekly pay was €518.00 with a 3% pension contribution and he worked a 35 hour week. He was paid eight weeks' notice The Complainant submitted a complaint to the WRC which was received on 22 September 2016. The agreed redress is compensation.

Summary of Respondent’s Case:

The Respondent submitted a detailed written submission.

The Respondent strongly refutes the claim and maintains that the Complainant was dismissed after the proper engagement of its disciplinary process following the receipt and investigation of serious allegations with respect to the Complainant.

The Respondent submits that the Complainant was dismissed following a disciplinary hearing held on foot of findings in two investigations; the first into an allegation of harassment and sexual harassment and the second into an allegation of bullying, made by two female colleagues of the Complainant. Both allegations were made in early March 2016.

The Respondent commissioned outside HR consultants to carry out the investigations referred to above which took place in April.

In relation to the first allegation the investigators found that whilst the complaints of harassment and sexual harassment were not upheld, the Complainant's behaviour towards his female colleague was deemed to be wholly unacceptable, unprofessional and highly inappropriate.

In relation to the second allegation the investigators found that following a detailed investigation and based upon the evidence provided, the complaint of bullying did not fall within the prescribed definition of bullying and that the complaint was not upheld. However, the investigators concluded that the Complainant's actions over the course of the dates in question were ill-judged and questionable and would on the balance of probabilities have had an undermining effect in respect of the dignity at work of the woman who made the allegation.

The Respondent submitted that having considered the content of both investigation reports the Managing Director considered the matters contained therein as potentially serious and invited the Complainant to a disciplinary hearing on 1^st June.   Following the Disciplinary Hearing the Respondent decided to dismiss the Complainant because, "the behaviours engaged in by the Claimant were wholly inappropriate and that they could not be tolerated by the Respondent under any circumstances. In finding that the relationship of trust and confidence between the Respondent and the Claimant had been undermined by his actions, the Respondent informed the Claimant that it had no option but to terminate his employment".

The Complainant appealed the decision to dismiss and an appeal hearing took place 30^th June. The Respondent submitted that having considered all the grounds raised at the appeal hearing the Complainant's appeal was not upheld and deemed the sanction of dismissal appropriate in the circumstances.

The Respondent submitted that it acted at all times in a reasonable manner and that following the outcome of detailed investigations into serious allegations there was no option available other than to dismiss the Complainant.

In response to questioning the Managing Director, who had made the decision to dismiss, stated that he had thought long and hard before he made his decision. He had thought about changing the Complainant's shift but that was not possible and in his view dismissal was the only route. He stated that he had a duty of care to his employees and he could not be sure that a re-occurrence would not take place.

In cross examination the Managing Director agreed that the two allegations made against the Complainant were not upheld but he felt he could not trust the Complainant. When asked if he had considered other things such as training or issuing a final written warning he replied that the Complainant had been involved in other things and he had to take these into account.

The Chair of the appeal panel also gave direct evidence. He stated that while other matters (other than the outcome of the investigations) may have been raised at the appeal hearing there were only in relation to breaches of trust.

In cross examination the Chair of the appeal panel stated that there had been no deliberate intention on his part to ignore the matter of disproportionality as raised by the Complainant in his appeal letter. When asked if the Complainant's 30 years of service was taken into account the witness stated that none of these decisions were easy.

Summary of Complainant’s Case:

The Complainant submitted a detailed written submission.

The Complainant submits that the Complainant was unfairly dismissed for a number of reasons.

Regarding the investigations it is the Complainant's view that in both investigations the investigators reached additional conclusions beyond the limits of the Terms of Reference for the investigations. In the Terms of Reference it says that one of two conclusions will be reached; firstly, the complaint is upheld or secondly, the complaint is not upheld. In these investigations the reports did not uphold either allegation yet still went on to reach other conclusions.

The Complainant put forward that the Respondent's Dignity at Work states inter alia, that "where an investigation is inconclusive and the complaint is not upheld there will be no negative inference against any party to the complaint." As both complaints were not upheld by dismissing the Complainant the Respondent did not follow its own procedures.

The Respondent also alleged that the Complainant did not receive a fair hearing on foot of his appeal submitted in respect of the decision to dismiss him. At the appeal hearing, according to the Complainant, the panel omitted to address the final ground he had raised in his appeal letter namely the fact that the findings of the independent investigators were either ignored or overlooked and that the decision to dismiss was disproportionate. It was only when these issues were raised by the Complainant's representative at the appeal hearing that they were discussed and these points were not recorded in the minutes of the appeal hearing. It was also stated by the Complainant that two other matters, neither of which were part of the decision to dismiss (including a letter referring to alleged absenteeism), were brought up in the appeal hearing by the Chair of the panel.

The Complainant also submitted that as the Respondent imposed the highest level of sanction nothing short of the strict definition of harassment, sexual harassment and workplace bullying should have been satisfied before a decision to dismiss was taken and as both complaints were not upheld then the Complainant submits the Respondent was seeking other reasons to dismiss the Complainant and that the investigations were not carried out solely for the purpose of establishing whether the Complainant acted in the manner as alleged by his colleagues.

The Complainant submitted that the Respondent has relied on the contention that they acted reasonably in dismissing the Complainant however the Complainant contends that one of the key principles regulating the reasonableness of a dismissal is compliance with the principle of proportionality. The Complainant references McCurdy v Adelphi [1992] E.L.R. 14 and the EAT case Fitzpatrick v Dunnes Stores (2014) in support of this contention.

In direct evidence the Complainant stated that when he was informed of the outcome of the investigations he was delighted and thought he would be returning to work from his suspension. His view was that the appeal hearing had a pre-ordained outcome.

The Complainant was medically certified unfit to work in August 2016 and at the date of this hearing continues to be unfit to work. However, he has looked for work states that it is a small town and many of the companies are affiliated

In conclusion the Complainant submits that for all the reasons outlined above this was an unfair dismissal.

Findings and Conclusions:

I have considered the matter carefully.

Section 6(1) of the Unfair Dismissals Act provides:

 “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

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

In his evidence the Managing Director stated that he dismissed the Complainant because he could no longer trust him. This despite the fact that the two allegations made against the Complainant by his female colleagues, following investigation by a reputable HR consultancy, had not been upheld. While the report did highlight unacceptable behaviour by the Complainant was that behaviour such that the bond of trust between employer and employee was sundered beyond repair? I do not think so. From the evidence adduced I do not believe there were substantial grounds to justify a dismissal.

Does the punishment fit the crime? Dismissal is the ultimate sanction in the employment sphere. Before a decision to dismiss is taken an employer must investigate all other options. In his evidence the Managing Director said he had looked at all the options available to him but came to the view that dismissal was the only option left to him. I find it hard to believe that some sanction short of dismissal could have been found. An employee with 30 years' service surely deserves a sanction far less reaching in its consequences.

Was it reasonable, as the Respondent has argued, to dismiss the Complainant? I do not believe the sanction of dismissal equates to the actions of the reasonable employer.

The Respondent submitted that the disciplinary process was fair from start to finish. However, a number of difficulties arise in relation to fair process when they are looked into in depth.

Firstly, as pointed out by the Complainant, the company's own policy states that if a complaint is not upheld there will be no negative inference against any party to the complaint, yet following the investigations, neither of which upheld the allegations, the Complainant was dismissed. The Respondent chose to ignore its own policies.

It would seem to me that other issues, not connected to the allegations of sexual harassment, harassment and bullying, were taken into account in the decision to dismiss the Complainant.   Managing Director said he had taken other issues into account in his decision to dismiss. To do this is unfair. One issue deserves one disciplinary process.

In addition 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 did not deal with the arguments raised by the complainant properly. Other issues, which were not apparently linked to the decision to dismiss, were raised. Why, one must ask, were such issues raised if they played no part in the decision to dismiss?

It is my view that there was insufficient grounds to justify a dismissal, the sanction was far too severe and the procedures were unfair.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

I find that this was an unfair dismissal and the complaint is upheld.

The Complainant was certified as sick from just after the appeal hearing and therefore unavailable for work from August 2016 to the date of hearing.

Section 7 (1) (c) of the Act states

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

I therefore order the Respondent to pay the Complainant a sum of €2,134.16 (weekly pay x 4 x 3%).

Dated:   31/08/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words:

Proportionality, fair procedures, reasonableness.