ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00001250

	Complainant	Respondent
Anonymised Parties	A Technical Support person	A Communications company

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-00001697-001	29/12/2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00001697-002	29/12/2015

Date of Adjudication Hearing: 25/04/2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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).

Background:

The Complainant alleged he was unfairly dismissed. The Complainant submitted two identical complaints to the WRC and Compliant Reference Number CA-00001697-002 was withdrawn at the Hearing. This decision relates to reference number CA-00001697-001.

Summary of Complainant’s Case:

The Complainant made a verbal submission. He was dismissed on August 24^th 2015 without warning or fair procedures. He was dismissed for what other staff do routinely. He did appeal his dismissal internally but got no response to his request to have an appeal hearing. He advised that just because he enquired about redundancy a few times is not relevant to the case. There was no personal gain for what the Complainant said to Customers. He was encouraged to engage with Customers and give them things if they were unhappy. His personal website was illegally accessed by company Representatives after he left their employment. He was encouraged to send Customers to their own website and got fired for doing it. What he did, did not amount to gross misconduct and he was unfairly treated.

Summary of Respondent’s Case:

The Complainant was dismissed, after an investigation, for inappropriate handing of customer calls and stating to Customers that he was going to be made redundant if they did not leave positive messages about him on the Company web site or his Facebook. He failed to follow Company protocol and gave away company property for free and inappropriately. He used inappropriate language to customers. The Complainant made derogatory remarks about the company and management to customers. The Complainant lied to customers. The Complainant was given the opportunity to present his answers to the allegations and he failed to provide any reasonable answers. The Complainant had previously failed to follow company policy when on sick leave. The Complainant had a Union Representative present at his disciplinary hearing. The Complainant was advised to contact his Union Representative when the allegations of gross misconduct were presented to him initially. The Complainant was represented by his Union Representative at the final disciplinary outcome meeting. The Complainant did not lodge any internal appeal of his dismissal and has failed to provide any evidence that he did lodge an internal appeal. The bond of trust was broken with the Complainant after these incidents came to light and the company considered it gross misconduct.

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. The Relevant Section of the Act to the claim is Section 6 which states

“6.1. 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.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

(b) the religious or political opinions of the employee,

(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,

(e) the race or colour of the employee,

(f) the pregnancy of the employee or matters connected therewith, unless—

(i) the employee was unable, by reason of the pregnancy or matters connected therewith—

(I) to do adequately the work for which she was employed, or

(II) to continue to do such work without contravention by her or her employer of a provision of a statute or instrument made under statute, and

(ii) (I) there was not, at the time of the dismissal, any other employment with her employer that was suitable for her and in relation to which there was a vacancy, or

(II) the employee refused an offer by her employer of alternative employment on terms and conditions corresponding to those of the employment to which the dismissal related, being an offer made so as to enable her to be retained in the employment of her employer notwithstanding pregnancy.”

None of the Grounds set out in Section 6.2 above were advanced at the Hearing and therefore the decision on whether the dismissal was fair or unfair is determined by Section 6.1 which states that a dismissal is not unfair if there are substantial grounds for the dismissal. It is not for an Adjudicator to establish if the Complainant committed and act of guilty of gross misconduct or not. The employer has determined that the Complainant did commit such an act of gross misconduct.

It is an Adjudicator’s role to consider all the facts, see if there are substantial grounds to justify the dismissal and see what a reasonable employer in the same position would do in the same circumstances. It is also our role to see have fair procedures been applied to the dismissal and disciplinary/representation process.

In Foley V Post Office (2000) CR1283 as stated by MummeryL.J. at p1295 “This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an oral appeal against, the merits of the employers decision to dismiss. The employer, not the Tribunal, is the proper person to conduct the investigation in the alleged misconduct. The function of the Tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in light of the results of that investigation, is a reasonable response”.

He also relied upon the decision of the Court of Appeal in Anglian Home Improvements Limited v Kelly (2005) ICR 242 where again Mummery L.J. held “The first criticism is that the employment tribunal did not correctly direct itself in law to the appropriate range of reasonable responses test. The test has been well established since the early days of unfair dismissal claims. It is still impossible to improve on the passage from the Judgement of Lord Denning MR in British Leyland UK Ltd V Swift (1981) IRLR91 para 11 cited by Mr Laddie. The correct test is; was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal is unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view; another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him”.

It appears that the bond of trust has broken down between the Complainant and the Respondent. This is an irrevocable situation. The actions of the Complainant, which were not basically in dispute, though the Complainant felt that he was following company policy, were a series of incidents, which if one were taken in isolation may not be gross misconduct but taken as a whole the Respondent felt that they were gross misconduct. There is no evidence that the Complainant was not given fair procedure and he had no evidence of having appealed his decision internally. The Complainant was also asked to identify his loss of earnings and he stated he was out of work for nearly a year after being dismissed but the Company submitted evidence of the Complainants own Indeed web site which showed he said he had worked for nearly the full year he claimed he did not work. This evidence was obviously contradictory and only relevant if the claim for unfair dismissal succeeds. Overall I find that the Complainants actions did not meet the standard expected by the Respondent of an employee in his customer contact role and that there was no evidence that he was treated unfairly in the disciplinary process. Having considered all the submissions, I find that the Complainant was not unfairly dismissed on the grounds that the actions of the Respondent were reasonable in the circumstances and they had established substantial grounds to justify the dismissal and the claim fails accordingly.

Dated: 15^th June 2015

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Unfair dismissal