EMPLOYMENT APPEALS TRIBUNAL
Case No.
UD367/2015
APPEAL OF:
The Connacht Hotel
Against the recommendation of the Rights Commissioner in the case of:
John Guilfoyle
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C, Egan B.L.
Members: Mr. T. Gill
Ms. H. Henry
heard this appeal at Galway on 21st April 2016, 31st May 2016, 1st June 2016 and 11th October 2016
Representation:
Appellant: Mr. Patrick Mullins, BDM Boylan Solicitors, Clarke’s Bridge House, Hanover St. Cork
Respondent: Mr. Paul Hardy, SIPTU, Liberty Hall, Dublin 1
Appellant’s Case:
The Tribunal heard evidence from the Human Resource Manager (JOD), who was employed by the appellant since 2012. The respondent (hereinafter called claimant) was employed as Head Porter and had thirty years’ service with the appellant. The witness recalled her first encounter with the claimant when he called her in an open area of the hotel and advised her that he was the shop steward and that “everything that went on in the hotel” goes through him. The witness recalled an incident that occurred on the 12th March, 2013, where the Operations Manager (MY) phoned her and told her that he had an argument that morning with the claimant while discussing the porter’s roster with him. MY complained that the claimant was aggressive towards him and used abusive language in front of customers, and a Director (PF) who was by coincidence, dining nearby. MY requested an informal meeting with the claimant and asked the witness to act as a facilitator/mediator. Later that day the witness attended the meeting with MY and the claimant. The witness stated that MY explained to the claimant that the purpose of the meeting was to discuss informally his attitude, aggressive behaviour and use of bad language earlier that morning. The witness told the Tribunal that the claimant was agitated and did not admit to using abusive language. She stated that she attempted to appease the claimant and asked him to sit down as he did not appear to engage with them. She said that the claimant did not wish to remain at the meeting and stood there. The witness assured the claimant that it was an informal meeting to facilitate the claimant in addressing his unacceptable behaviour. She repeated her invitation to him to sit down. He refused and addressed MY and said: “if you feel you have a case, then bring it through the formal disciplinary.....” The witness stated that the claimant began walking away from them. MY then told the claimant that he was suspended on full pay pending investigation. MY reported the matter to the general manager (SL). A letter dated the 27th March 2013, setting out the allegations against him, was sent to the claimant inviting him to a disciplinary meeting and advising him of his entitlement of representation at the meeting. The witness told the Tribunal that a disciplinary meeting was held on the 3rd April 2013 with the general manager (SL), the claimant and his representative MM of SIPTU and the witness, who was the note taker. At the meeting MM stated that the claimant denied that he had been aggressive on the 12th March 2013. The minutes of the meeting were opened at the Tribunal.
By letter dated the 12th April 2013, the general manager (SL) wrote to the claimant to extend his period of suspension with pay from the 16th April to the 19th April 2013 and to advise the claimant that an Independent Mediator and Facilitator (MC) was conducting an independent investigation into the matter. A copy of the Disciplinary Procedure was included.
The witness told the Tribunal that the independent report went to the general manager (SL) and that she discussed its findings with him and agreed with its recommendations that disciplinary action should be taken. She stated that based on the meetings that had taken place during the course of the investigative process, and the findings of the independent report, it was decided that the claimant would be dismissed for gross misconduct with immediate effect. The letter of dismissal of the 19th April 2013 from the general manager (SL) to the claimant was opened to the Tribunal.
The claimant appealed his dismissal. The witness was not involved in the appeal process.
The Tribunal heard the evidence of the Operations Manager (MY), who stated that he had been six months in his position when the incident of the 12th March 2013 occurred. In his role he was responsible for the day to day running of the ground floor, for the food and beverage and the back office, the pay roll and roster structure. He stated that the claimant was Head Porter and had approached him regarding staff on his rota whose hours had been cut. He said that the claimant became aggressive towards him and used abusive language and stormed off, despite the witness requesting him to stop and to engage with him. The altercation took place in an area where there were customers. Shortly after the incident the witness invited the claimant to an informal meeting to discuss the matter. The witness contacted the Human Resource Manager (JOD) and asked her to act as facilitator/mediator at the meeting. The witness told the Tribunal that at the meeting the claimant began “eyeballing” him in an intimidating manner, and that he was aggressive and disrespectful throughout and refused to engage. He would not apologise and his approach was: “you can take a case”.....
Under cross-examination MY confirmed that he had been six months in his role when the incident occurred, and that he had spoken to the claimant about his conduct. As head of the Department it was his duty to liaise with the claimant, but that the claimant had told him to “f..k off” in front of customers. He said that the claimant had been agitated and aggressive and that he felt threatened by his behaviour. As a result he felt it was necessary to ask JOD to act as note taker at the informal meeting that took place shortly after the altercation.
The Tribunal heard the evidence of the Director/Owner (PF), who was having breakfast in the hotel when the incident of the 12th March 2013 occurred. He heard the argument between the claimant and MY, and heard the claimant using bad language and waving his hands at MY. He heard MY asking the claimant to stop using bad language and heard an argument in relation to rostering hours. He witnessed the claimant walking away down the corridor and MY asking him to come back and the claimant refusing and telling MY to f..k off. He stated that he was surprised by what he heard, particularly as it was taking place in a public area. The witness had no further involvement in the matter.
The Tribunal heard the evidence of the General Manager (SL), who had been General Manager of the hotel for over four years and had been fourteen months there at the time of the incident. SL had been over twenty years in hotel management. He stated that the appellant had operated the Hotel under licence agreement from the owners. When the owners went into liquidation, the Hotel was sold to another company who in turn leased the property to the appellant. The witness told the Tribunal that Heads of Departments would meet on a weekly basis as the hotel business was in difficulty at that time, and over-rostering had to be addressed. He would have had contact with the claimant in his role as shop steward on a weekly basis to address issues, for example, sick pay practices of the pre-recession times. The hotel was technically insolvent.
There was consultation with all departments and in particular with SIPTU, with whom he stated that there was positive engagement. He said that he had meetings with MM of SIPTU eight or ten times in an effort to save jobs. One hundred and fifty people were employed in the hotel. There was a collective agreement with SIPTU for years. Subscriptions for SIPTU membership were deducted at source.
Regarding the incident of the 12th March 2013, the witness told the Tribunal that the Human Resource Manager (JOD) had informed him of the informal meeting that the Operations Manager (MY) had arranged with the claimant and herself as facilitator, and the outcome of that meeting. The witness sent an email to MM of SIPTU on the 15th March 2013 clarifying the situation. The email was opened to the Tribunal. A letter dated the 25th March 2013 from the witness to the claimant was opened to the Tribunal. It dealt with the claimant’s ongoing paid leave and again clarified the status of the informal meeting that had taken place on the 12th March 2013. The witness stated that SIPTU did not dispute the facts or contents of that letter. By letter dated the 27th March 2013, SL invited the claimant to a disciplinary meeting, stating his entitlement to representation and included a copy of the disciplinary procedure. The witness told the Tribunal that he was “at pains” to adhere to the proper procedure regarding disciplinary hearings.
MM of SIPTU requested an adjournment of the disciplinary meeting scheduled for the 29th March 2013. The witness stated that in the meantime there was no indication that the clamant was trying to resolve the matter or to offer an apology.
The disciplinary meeting was rescheduled for the 3rd April 2013. The witness, and Human Resource Manager (JOD) and the claimant and his representative MM of SIPTU were in attendance. The minutes of the meeting were opened to the Tribunal. The witness stated that the claimant showed a lack of sincerity and refused to engage with the process.
By letter dated the 4th April 2013, SL wrote to the claimant stating, inter alia, that his suspension on full pay would continue until the 16th April 2013, pending an external investigation. The witness told the Tribunal that in order to ensure fairness, he felt that an external independent investigation should be conducted by an Independent Mediator and Facilitator (MC). When questioned as to the independence of MC, SL stated that MC had worked previously for the HSE for forty years and that there was no objection to him. MC was told he could have a “free hand” to run his own investigation. By letter dated the 12th April 2013, SL wrote to the claimant extending his period of suspension on full pay until the 19th April 2013.
The claimant was dismissed for gross misconduct by SL by letter of dismissal dated the 19th April 2013. The claimant was offered a right to appeal the decision to a former Chairperson of the Health and Safety Authority, (JL).
An appeal was filed and prepared by SIPTU. Under cross examination, SL was asked if he had disciplined anyone else for swearing and replied “no”. The witness told the Tribunal that he was conscious of the downturn in business in the hospitality sector at that time, and the loss of jobs if the hotel closed. He had no complaints about the claimant’s conduct at meetings, but was “surprised and disgusted” at the claimant’s alleged treatment of other staff members. The witness stated that the allegations made by MY that he was the subject of aggressive, intimidating and threatening behaviour by the claimant, had been proven by the independent external investigation. He had subsequently been informed of other allegations, concerning the claimant, made by employees who were fearful of being identified.
SL stated that he did not know MC in advance of the investigation and that MC was not asked to investigate complaints of eight other employees. He said he agreed with MC’s findings one hundred percent. He noted that the claimant did not show any remorse and refused to engage with the process. SL stated that the claimant’s dismissal had been his decision as general manager. The Tribunal heard similar fact evidence from four other employees whose testimonies illustrated the claimant’s propensity for aggressive and intimidating behaviour.
The Tribunal heard evidence from a previous Director/Owner (PF). He told the Tribunal that he found the claimant difficult to deal with and “disrespectful the whole time”. He felt the claimant’s role as union representative gave him a certain power. He found some employees and some members of management staff in fear of the claimant. In particular, he stated that he found female employees afraid to bring complaints about the claimant to the next level. Nobody was prepared to formalise a complaint. He was aware that the claimant had referred to the females in the Accommodation Department as a “bunch of monkeys”. The witness had been interviewed by MC in the course of the independent investigation, though his interview was not recorded in MC’s report. The witness told the Tribunal that he was no longer involved with the hotel.
The Tribunal heard the evidence of the independent investigator (MC), appointed to investigate the incident of the 12th March 2013. He told the Tribunal that he interviewed the claimant, who was accompanied by a union representative (JL).
When asked by MC if there was any other party he wished to call to support his position, the claimant replied: “I will not be defending myself”. The witness told the Tribunal that the claimant refused to engage with the investigative process. Notwithstanding this, MC went ahead with the investigation and interviewed a number of employees.
The reason given by MC as to why he interviewed other employees when he knew the incident of 12th March did not involve them, was that he wanted to find out if the claimant was likely to have acted as he was alleged to have acted on 12th March 2013. MC had been given names of employees to speak to by management and he could not remember who said what in relation to specific accusations against the claimant nor could he give the names of those interviewed to the Tribunal.
Having completed his investigation, MC found that the Operations Manager (MY) was subjected to aggressive, intimidating and threatening behaviour amounting to gross misconduct and recommended further disciplinary action.
The claimant appealed the findings to JL.
His appeal failed.
Respondent’s Case:
The Tribunal heard the evidence of the respondent (JG) (hereinafter called the claimant) who began his employment in 1983 in what was then the Galway Ryan Hotel. He was subsequently Head Porter and Shop Steward. In or around 2012/2013 he was negotiating packages for employees in cost reduction measures as the hotel was losing money.
On the 12th March 2013 the claimant stated that he was in the bar area of the hotel at 9.20am approx., when the Operations Manager (MY) approached him. The claimant said he was representing a member of his own department who had transferred to another department and he had promised the man the weekend off. The claimant told the Tribunal that MY moved the conversation to “rostering”. He admitted that he used the f..k word to say that “there was no f..king point in his writing a roster only to have it changed”. The claimant denied having sworn at MY and told the Tribunal that he was assertive rather than aggressive and that the union had trained him to get the best deal for workers. He said he walked away because the confrontation would get worse. As he proceeded down the corridor MY called him twice and the claimant said that he (the claimant) laughed twice. He denied that he told MY to f..k off.
At the subsequent meeting with MY, with JOD present, the claimant stated there was only mention of his use of the swear word and no mention of the roster situation. He said that as the meeting deteriorated he could not continue and would not continue without a representative. The claimant denied that he “eyeballed” MY throughout the meeting and denied that he had stormed out of the meeting. He stated that he “moved quickly”. In cross-examination the claimant stated that it didn’t occur to him to apologise because he believed that MY had no interest in resolving the matter.
In reply to being asked in examination in chief if he had engaged with a disciplinary process, the claimant contended that there was no impartial investigation into the matter. In cross-examination the claimant confirmed that neither he nor his union representative MM had any objection to the external independent investigation carried out by MC.
In response to allegations that his union work came first, and that he ensured less favourable conditions for employees not in the union, the claimant stated that he never asked employees to join a union. The claimant told the Tribunal that in November 2012, MY brought his attention to the necessity to clean the gents’ toilets and check them on an hourly basis. The claimant refused to carry out the instruction and contacted his union. When he did not get the desired response to his request for a union meeting, he resigned his position as shop steward. Three days later the union convened a meeting and the claimant accepted the position of shop steward again.
In cross-examination it was put to the claimant that several employees, predominantly females, had difficulties dealing with him due to his intimidating behaviour and foul language, which often reduced them to tears and that he was not very approachable, and was aggressive. He stated that this only occurred two or three times over thirty years.
When questioned about loss, the claimant said that he was a carer for his wife and worked on an ad hoc basis from July 2014.
Determination:
The Tribunal gave careful consideration to all the evidence adduced in this case. The appellant adhered to proper procedures by carrying out a fair and thorough investigation prior to the decision to dismiss the respondent (hereinafter called the claimant). The claimant was aware of the allegations against him and he was represented at the disciplinary hearing and the independent investigation.
The claimant refused to engage in any meaningful way with the disciplinary process. Among the implied terms in the contract of employment are mutual trust and confidence and co-operation. There is an onus on an employee to make efforts to resolve a grievance. Neither the claimant nor his representative, at any stage of the process, demonstrated a willingness to attempt to resolve the matter.
On the basis of the corroborated evidence of the Operations Manager, and the findings of the disciplinary investigation, and having regard to all the circumstances, it was reasonable for the appellant to conclude that the claimant acted in an aggressive, intimidating and threatening manner towards the Operations Manager on the 12th March 2013, and that the claimant’s behaviour amounted to gross misconduct. The decision to dismiss the claimant was a decision which a reasonable employer in the particular circumstances could have reached. The Tribunal finds that the claimant was not unfairly dismissed and it upholds the appellant’s appeal against the recommendation of the Right’s Commissioner.
Sealed with the Seal of the
Employment Appeals Tribunal
This ______________________
(Sgd.) ______________________
(CHAIRMAN)