ADJ-00004872

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004872

Parties:

	Complainant	Respondent
Anonymised Parties	A Health Care worker	A Health Care Organisation.

Complaint(s):

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-00006719-001	31/08/2016

Date of Adjudication Hearing: 11/05/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Location of Hearing: Room 4.01 Lansdowne House

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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).

1: Summary of Complainant’s Case:

The Complainant was dismissed on the 11/03/2016, on grounds of serious misconduct, from his employment by Hospital X.

The dismissal could ultimately be traced back to an allegation of sexual harassment made by a fellow employee regarding an alleged incident which took place on the night of the 18^th October 2012.

The Complainant was dealt with under the Respondent Dignity at Work Policy and Section 4 of the Respondent Disciplinary Procedures.

A full investigation was carried out and reported on the 20^th January 2014.

This was then followed by a Disciplinary Hearing under Section 4 .This concluded on the 18^th September 2015. The Complainant was dismissed on grounds of serious misconduct.

The Dismissal was appealed to the Internal Dismissal Appeal Committee which issued its findings on the 11^th March 2016. The Dismissal was upheld.

The issues of concern for the Complainant were

The matters of the night of the 18^th October 2012 were outside the scope and jurisdiction of the Respondent Dignity at Work Policy. The matters complained of took place after a work event had concluded and as such could not be seen as being under the scope of the Policy. The process was legally void ab initio.
The entire process was inordinately delayed.
The investigation process was biased.
Inappropriate reliance was placed by the Respondent on legal Authorities not opened to the Complainant.
The DPP had decided not to prosecute the Complainant. Nonetheless the Respondent had taken on the role of judge and jury against the Complainant.
There was no proper evidential basis for the finding of sexual harassment. The incidents complained of were consensual between the parties and but for a third party would never have been raised as an issue.
The sanction of Dismissal is disproportionate in view of the exemplary record of the Complainant and a finding that he is some way is a threat to service users has no basis.

It was submitted that it the light of the above seven points the Dismissal was unfair and should be set aside.

2: Summary of Respondent’s Case:

The basic facts were agreed as set out above. The entire situation had been thoroughly investigated in keeping with all procedures. The Disciplinary process was thorough and scrupulously carried out.

The Dismissal Appeals Committee (DAC) hearing had been comprehensive and had delivered a very considered judgement running to some 36 pages. The rules of Natural Justice had been clearly followed at all stages. The Complainant had legal representation from the very start of the process and throughout all stages. The Dismissal Appeals Committee is chaired by a very experienced Legal Authority in the area of Employment law.

The seven points of complaint, above, had been addressed by the legal representatives of both parties during the appeal hearing. The final judgment of the DAC has to be given considerable weight in any consideration of this case.

The Dismissal was fair and procedurally exemplary. Accordingly the claim must fall.

3: Findings and Conclusions:

3:1 The legal basis is the Unfair Dismissal Act 1977 and S.I. No 146 of 2000 – Code pf Practice on Grievance and Disciplinary issues. There is very extensive legal precedent in this area.

3:2 It is well settled law that the function of the EAT or by extension an Adjudication Officer is not to reinvestigate a Dismissal decision or to rehear a “de novo” Appeal. It is also not to undertake the decision of changing a sanction made by an employer save on very substantial grounds. The test being a judgement on the reasonableness of the employer’s decision and whether or not it falls with the range of reasonableness.

The primary function of the Adjudicator is to ensure that all fair procedures were carried out and that the Rules of Natural Justice were paramount at all times.

3:3 In the Adjudication case in hand very extensive evidence was presented both orally and in written format. The initial internal case took almost four years to conclude. The key decision maker, Mr. A, a national level senior Officer of the Organisation, gave extensive oral evidence in relation to how he had carried out the Disciplinary process and the steps involved in same. It was clear that he had conducted matters in a most careful and fair manner. He had obtained legal advice on his own role in and conduct of the Disciplinary proceedings.

The key question of jurisdiction (whether or not events late in the night /effectively the early morning of the next day in a private residence were within the remit of the Dignity at Work policy) had been considered carefully by him.

It was clear that the Dismissal decision, as opposed to a lesser penalty, had only been arrived at after the most serious consideration and reflection.

The Dismissal Appeals Committee (DAC) hearing had run over two days and the Findings were comprehensive and considered. The doctrine of contra proferentum in regard to the Dignity at Work Policy was considered. Extensive legal precedents in a range a range of landmark cases such as the UK case of Chief Constable of Lincolnshire Police v Stubbs [199] ICR EAT, the New Zealand case of Smith v Christchurch Press Co. Ltd [2001] ICR EAT and a considerable range of Irish cases were considered.

The Complainant was legally represented at all times during the DAC Hearing and indeed in all previous stages, by firms of Solicitors experienced in employment Law matters

Reviewing all the considerable evidence I came to the view there could be absolutely no doubt that the rules of Natural Justice and fair procedures were scrupulously observed at all times.

3:4 In summary, having reviewed all the evidence, I came to the view that all issues both practical and legal had been thoroughly considered. The decision to dismiss, as opposed to a range of other possible sanctions, was within the band of reasonableness for an employer in the Health/Social care sector involved here. The case of The Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 228 is useful authority here.

Accordingly I find that the claim for Unfair Dismissal is not well founded and is dismissed.

4: 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.

Act	Complaint/Dispute Reference No.	Summary Decision
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00006719-001	Claim for Unfair Dismissal is not well founded and is dismissed.

Dated: 10/07/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee