ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00001805

Complaint(s):

Date of Adjudication Hearing: 11/11/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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 respondent employed the complainant from 11^th of June 2001 until the 5^th of February 2016. She was paid €738.97 and worked 37.5 hours per week. The complaint was received by the WRC on the 6^th of February 2016 and the parties made written and oral submission to the hearing.

Preliminary Issue(s):

The respondent submits that the complainant is engaged in an abuse of process in that she seeks remedy in more than one forum where the cause of action is the same factual scenario and the same essential wrongdoing is involved. She is well aware of the issue of double claiming and demonstrated her knowledge concerning duplicity in proceedings in a letter to the respondent on the 9^th of February 2015. The complainant has lodged various complaints at different fora essentially relying on the same factual matrix, the same key incidents and perceived perpetrators as her other claims.

Summary of Respondent’s Case:

The respondent submits that the complainant was dismissed fairly for serious misconduct for         “a. Failure to adhere to management instructions regarding her interaction with another named employee, b. Repeated breaches of confidentiality and c. Unacceptable conduct towards her managers.” The complainant met with the respondent’s Head of Employee Relations (ERM) on the 16^th of September 2014 to discuss her return to work following a four month absence and to receive the report arising from a review of issues raised by her together with a summary of additional interviews that had been conducted. She was instructed at that meeting to desist from engagement with two named colleagues other than on a work related basis and that she was obliged to observe confidentiality in respect of the review etc. She duly returned to work on the 22^nd inst. On the 9^th of October 2014 she directly breached the written instruction she received in respect of her interaction with one of the two named colleagues and accused her manager of having lied to the review. Additionally she had indicated that she had breached confidentiality in a letter to the ERM dated 29^th of September 2014. He met her on the 1^st of October and reminded her of her obligation and advised her that if the particular breach became public it could have implications for her position. She was asked to attend a meeting to consider these matters on the 13^th inst. and she did so in the company of a colleague. She accused the ERM of having lied to the review at the meeting and gave her account of the interaction with her colleague on the 9^th inst. and the other alleged breaches of confidentiality arising from the review. Her suspension with pay was confirmed in writing following the meeting and she was advised that the matters would be submitted to the Human Resources Department for consideration and that it may ultimately be dealt with under the disciplinary procedure. In its letter to the complainant of the 19^th of November the respondent outlined the fact that it was considering the imposition of disciplinary sanction up to and including her dismissal as a result of its further enquiries, it provided details of all documentation (statements, letters and notes of meetings) which it intended to rely upon and invited the complainant to participate in the process and to be accompanied. Every effort was made to afford the complainant an opportunity to explain her position and her rights in natural justice were observed throughout. “In May 2015, despite beingunder notice that her dismissal was under consideration for the earlier breach of confidence, the Claimant wrote to several colleagues referring to statements they had given confidentially to a Company Inquiry and sought to place a certain degree of pressure on them in relation to evidence they might offer in respect of a personal injuries claim which she was pursuing against the Company”. The complainant was dismissed by letter of the 22^nd of July 2015 thereafter. The dismissal was upheld on appeal however the reasons were revised to reflect the removal of the adjective Persistent which originally preceded the word Failure at a. above.                                               It is the responsibility of management to reasonably give direction to employees concerning the confidentiality of matters arising from complaints under dignity at work policy and take measures to contain further disruption and confrontation to ensure a properly functioning workplace.    The respondent relies on the ‘range of reasonable responses’ test as outlined in Burchell v British Home Stores [1978] IRLR 379 to justify the herein dismissal.   

Summary of Complainant’s Case:

The complainant makes the following submission in her complaint to the WRC: - “I was unfairly dismissed by the respondent from my employment. They did not investigate the incident of 09/10/2014 until some 13 months later. No witnesses to the Altercation who were present were ever questioned. I was the only person suspended and then dismissed. The respondent tried to get me to enter settlement talks to leave my job before my Disciplinary Hearing.

I have been dismissed because I am suing the Company in the High Court over a sexual harassment claim. Because I then became so sick in the workplace I gave out a suicide note. That is the real reasons I have been unfairly dismissed.

I will never be able to work again as I have agoraphobia. The respondent called me to an investigation meeting on 13/10/2014. I hadn’t a clue as to the nature of the meeting. I had no union Rep with me. The respondent also accepted statements from management which they knew were untrue and these statements had to be changed.”

The complainant submits that the dismissal was unfair on both substantive and procedural grounds. She asserts that her interaction with the named employee was initially on the basis of a work related matter and that it was her fellow employee who instigated the altercation (if any) between them. With regard to the second allegation against her she points out that there was no breach of confidentiality rather she was canvassing witness statements for a high court action against the respondent as she was advised to do by her solicitor. Furthermore she did not breach the confidentiality of the review to another colleague as alleged and that the particular colleague verified that she had not done so. She was not abusive to her managers and merely pointed out that they had lied in their statements to the review.                                                                                                     She was declared fit to return to work on the 29^th of May 2014 by the Chief Medical Office. He stated that she was more sensitive than most and that therefore management may wish to ensure that the dignity at work policy is followed at all times. She remained off work pending a review of matters raised by her relating to previous issues at work pertaining to the dignity at work policy. She met the ERM on the 16^th of September 2014 to receive the outcome of the review. She sent a letter to the ERM on the 17^th inst. informing him that she had informed family and friends of her impending case against the respondent in July. She sought mediation in respect of matters generally but he informed her that it was not an appropriate route at the particular time. She returned to work on the 22^nd inst. and informed the ERM that her colleague had lied to the review on the 29^th inst. She asked him to re-interview that colleague on the 1^st of October but he refused to do so. Nothing was mentioned about her job being in danger at that point. Following the incident on the 9^th inst. she received a letter from the ERM on the following day requesting her attendance at a meeting on the 13^th inst. She was not advised of the nature of the meeting. She was suspended from work on the same day following the meeting however her colleague was not suspended. Another colleague who had attended the meeting with her on the 13^th confirmed to the ERM on the following day that she had not been made aware of statements made about her to the review panel in breach of confidentiality prior to the meeting. On the 29^th of January 2015 she attended a disciplinary hearing. The respondent sought to induce her to leave her job through her solicitor on the 13^th of November 2014 and denied any responsibility for the symptoms she was experiencing in a letter from the ERM on the 24^th inst. She received a notice of her dismissal on the 22^nd of July 2015 and attended an oral appeal hearing on the 19^th of August. She wrote to the appeals officer on the 7^th of December 2015 stating that it would have been her preference to have been offered an opportunity to attend mediation but that it did not happen. She received a letter from the appeals officer on the 26^th of January 2016 upholding the dismissal and she was dismissed with effect from the 5^th of February 2016. The failure to advise her of the nature of the meeting on the 13^th of October 2014 and the inordinate delay in bringing the process to conclusion have impaired the procedure to such an extent that it must be regarded as being fatally flawed.

Findings and Conclusions:

Addressing the preliminary issue raised by the respondent first I am of the view that the burden placed on employers as set out at s. 6 of the Act is pre-eminent. It is for the respondent therefore to set out the justification for the dismissal. I am only in a position to make my decision based on that justification. Furthermore it seems to me that in order to advance the position as outlined in the WRC complaint form the complainant would have had to take a different route. Accordingly my decision will be based on the substantive and procedural justifications relied upon by the respondent and the complainant’s relevant rebuttal having regard to all the material circumstances and context. If there are implications as it relates to further and other complaints at other fora then it will be for those fora to consider the matter of abuse of process if any.

The letters of 19^th of November 2014 and that of the 22^nd of July 2015 are instructive and pivotal. The first refers to the complainant’s suspension from duty on the 13^th of October 2014 to allow for further enquiry arising from her conduct on the 9^th inst. while at work and provides details of the matters being investigated. It advises that in the circumstances that the respondent is considering taking disciplinary action up to an including dismissal, offers her the opportunity to make written and/or oral explanation or representations. I note that it sets out a time frame for the complainants response to the documentation provided and allegations made. The disciplinary hearing originally scheduled for the 4^th of December 2014 was deferred until the 29^th of January and the decision to dismiss was not made for a period of approximately six months thereafter. In the interim there was correspondence between the parties relating to the matters herein. There were reports in the interim to the HR manager to the effect that the complainant had sent letters to staff advising that it was her intention to use their statements made to the review in Court but that if they were willing to give more detail that they may not have to be summonsed to Court. For her part the complainant stated that she wrote to colleagues on the advice of her solicitor 21 days after having advised the respondent that she needed witness statements and not having received a reply.

I am satisfied that the complainant’s alleged actions in defiance of specific management instruction (relating to a named employee and the issue of confidentiality), and the alleged unacceptable conduct towards named managers as set out in the letter of the 19^th of November (the substantive issues) were of such import and importance as to justify their consideration at the extreme end of the respondent’s disciplinary policy. I am satisfied that the complainant was afforded every opportunity to defend her-self against the allegations by providing satisfactory explanation. I am also satisfied that she failed to do so and that it was reasonable to conclude in those circumstances that she was guilty of serious misconduct as alleged. Furthermore I am satisfied that the letter of the 22^nd of July 2015 (the letter of dismissal) clearly sets out her rights as it relates to an appeal of the decision. Finally I am satisfied that the procedures adopted were reasonable and fair and that neither the alleged failure to properly notify of the content of the meeting of the 13^th of October 2014 or the considerable time frames involved were not fatal to the process as alleged. The letter of notification to attend the meeting of the 13^th of October 2014 was by way of reminder that she was to attend a meeting on that date and referred to her suspension and conversation with her manager pursuant to the same. It advised her that she had a right to be accompanied at that meeting. The fact that there was extensive correspondence and interaction between the parties at all times during the process justifies what might in other circumstances be regarded as unacceptable delay.

I am satisfied that the decision ultimately reached was one which a reasonable employer would have reached in all of the circumstances described.

Therefore I find that the herein dismissal was not unfair.

Decision: 

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

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 complaint is not well founded.

Dated:   20^th June 2017

Workplace Relations Commission Adjudication Officer: Michael Hayes