FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : AN POST (REPRESENTED BY MR CATHAL MCGREAL BL; AS INSTRUCTED BY MR PAUL CARROLL, SOLICITOR, AN POST) - AND - CLAIRE STEPHENS DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No: ADJ-00001805CA-00002448-001.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 26 June 2017 in accordance with Section 8(A) of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on 24 October 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Claire Stephens against the decision of an Adjudication Officer under the Unfair Dismissals Act 1977- 2015 (the Act) in her claim of unfair dismissal against her former employer, An Post. The Adjudication Officer found that the Complainant’s complaint was not well-founded.
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Claire Stephens will be referred to as “the Complainant” and An Post will be referred to as “the Respondent”.
Background
The Complainant was employed by the Respondent as a Postal Operative in the Galway Mail Centre from 11th June 2001 until her dismissal on 5thFebruary 2016.
On 6thFebruary 2016 the Complainant referred a claim under the Act to the Workplace Relations Commission. The Adjudication Officer issued his Decision on 20thJune 2017, the Complainant appealed the Decision to this Court on 26thJune 2017.
This appeal was heard at the same time as a number of other appeals submitted to the Court by the Complainant. Extensive submissions and documentation were submitted in the course of the appeal which the Court has summarised in this Determination.
Summary of the Respondent’s Case
Mr Cathal McGreal, BL instructed by An Post Legal Services, on behalf of the Respondent, stated that the Complainant was dismissed by letter dated 22nd July 2015. The reasons for her dismissal were outlined as follows: -
- a.Persistent failure to adhere to management instructions regarding her interaction with another named employee.
b.Repeated breaches of confidentiality.
c.Unacceptable conduct towards her managers.
In its submissions and accompanying documentation to the Court, the Respondent outlined the situation facing it when it engaged in a disciplinary process with the Complainant. Mr McGreal said that the Complainant had been instructed on 16th September 2014 regarding the confidentiality of matters giving rise to the Respondent’s concern. However, in spite of this advice, on 9thOctober 2014, the Complainant became involved in an incident and in doing so appeared to ignore entirely what she had been directed to do (and not to do). On 9thOctober 2014, she engaged in exchanges with a named colleague, whom she was directed not to engage with (other than on work related matters) and as a result caused disruption in the workplace and upset to that colleague. When questioned about the exchange she became agitated with management and threatened to have the matter dealt with in the courts. She was cautioned about naming people without any evidence.Mr McGreal said that she then proceeded to engage with management in a hostile manner at a meeting on 13th October 2014. She persisted in re-opening past grievances, refused to accept that she was not permitted to ventilate confidential matters and accused management of telling lies. Following the meeting it was decided to suspend the Complainant with pay, as the Respondent could not allow a similar altercation or incident to occur. The Complainant was suspended pending an investigation into the incident concerned.
Mr McGreal said that it was made clear in the letter of 19th November 2014 to the Complainant that the Respondent viewed the matter very seriously and that it was considering disciplinary action up to and including dismissal. He said that every opportunity was given to the Complainant to respond to the allegation and to make representations. In that letter it was made very clear to the Complainant that a report into a review of matters she had raised relating to a number of her colleagues, was strictly confidential and not to be discussed with any other employees. As the Complainant mentioned in a letter to Mr Séan Madden, HR Manager Galway that she had informed others of the contents of the report on the 19th November 2014, the Respondent accused the Complainant of breach of confidentiality.The Complainant had also admitted speaking directly with her colleagues about the report, again in breach of explicit instructions to the contrary. Mr McGreal said that she was also accused of breaching a specific instruction not to interact with a named work colleague and had caused upset.
Mr McGreal said that, in May 2015, despite being under notice that her dismissal was under consideration for the earlier breach of confidence, the Complainant wrote to several colleagues referring to statements they had given confidentially in an investigation carried out into allegation made by her and she 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 Respondent. The Respondent alleged that this action by the Complainant was conducted in a manner which breached confidence and caused controversy. The Complainant was informed that she was dismissed on 22ndJuly 2015.
The Complainant appealed the decision to dismiss but the decision was confirmed by letter of 26th January 2016. The decision on appeal revised slightly the finding of failure to adhere to management instructions by removing the word 'persistent' from that dismissal ground. The Complainant continued to be paid during her appeal. Her dismissal took effect from 5thFebruary 2016. Mr McGreal maintained that the Complainant was offered an oral hearing and representation and her rights to fair procedure were observed throughout.
Mr McGreal stated that the Complainant never accepted that she was dismissed for the reasons outlined in the letter dated 22ndJuly 2016. Instead the Complainant argued that she was dismissed because she is suing the Respondent for sexual harassment and because she wrote a suicide note.
He said that the Complainant had written volumes of letters and complaints and in them she returns again and again to three key incidents involving three perceived perpetrators of wrongdoing. These are the following: -
- a.In May 2005 Ms A is claimed to have made unwelcome sexual advances towards the Complainant,
b.On 13th August 2012 Mr X left an inappropriate postcard with allegedly homosexual connotations on the Complainant's workbench, and
c.On 9thOctober 2014 Ms B is claimed to have hidden post (known as 'freepost') from the Complainant. Preceding this incident Ms B was also alleged to have spread rumours (that the Complainant was homosexual).
Mr McGreal said the allegation of spreading rumours was found to be without foundation as a result of inquiries undertaken by the Company.
He said that it was the circumstances (and the way in which the Complainant interacted with her colleagues and managers) with respect to the third of these incidents that gave rise to the decision to dismiss. However, he said that all three incidents and the three perceived perpetrators form the basis on which all of her claims seem to have been built. He said that almost everything in the Complainant's many complaints can be traced back in one way or another to these three incidents and these three people. Mr McGreal told the Court that Ms B featured repeatedly in the Complainant’s personal injuries claim as a person whom the Complainant had a plethora of complaints against.
In support of his contention that the dismissal was not unfair, and that it was reasonable in the circumstances to dismiss the Complainant, Mr McGreal relied uponBurchellvBritish Home Stores[1978] IRLR 379 which held:
- "First of all, there must be established by the employer the fact of that
belief; that the employer did believe it. Secondly, that the employer
had in his mind reasonable grounds upon which to sustain that belief.
And thirdly, we think, that the employer, at the stage at which he
formed that belief on those grounds, at any rate at the final stage at
which he formed that belief on those grounds, had carried out as
much investigation into the matter as was reasonable in all the
circumstances of the case. It is the employer who manages to
discharge the onus of demonstrating those three matters, we think,
who must not be examined further. It is not relevant, as we think, that
the Tribunal would themselves have shared that view in those
circumstances. It is not relevant, as we think, for the Tribunal to
examine the quality of the material which the employers had before
them, for instance to see whether it was the sort of material,
objectively considered, which would lead to a certain conclusion on
the balance of probabilities, or whether it was the sort of material
which would lead to the same conclusion only upon the basis of being
'sure', as it is now said more normally in a criminal context, or, to use
the more old-fashioned term, such as to put the matter 'beyond
reasonable doubt'. The test, and the test all the way through, is
reasonableness; and certainly, as it seems to us, a conclusion on the
balance of probabilities will in any surmisable circumstance be a
reasonable conclusion."
Mr McGreal contended that it was appropriate for management to give instruction to their employees concerning the confidentiality of matters arising from previous complaints and to take measures to contain further confrontation and disruption of a properly functioning workplace. He contended that in this case, the Complainant never accepted this and had sought every avenue open to her to litigate the issues she was not prepared to accept.
Mr McGreal alleged that the Complainant has been engaged in an abuse of process. He stated that the Complainant has taken so many overlapping claims, appeals and complaints that it is not possible to extricate one from another. He said that these claims had placed an enormous, unfair and unlawful burden on the Respondent. She has lodged a number of claims under the Industrial Relations Act 1969, the Unfair Dismissals Act, the Employments Equality Act and a Personal Injuries claim before the High Court. He argues that as the Complainant’s cause of action was the same, based on the same factual matrix, the same key incidents and perceived perpetrators, that it was contrary to public policy and to the law to pursue to conclusion a remedy in more than one forum. He submitted that in the unlikely event that any liability arises in this case, no party to legal proceedings should be punished or sanctioned in separate proceedings for the same essential factual complaints. Neither should any complainant be allowed to receive a remedy more than once on the basis of the same factual complaint.
Summary of the Complainant’s Case
The Complainant appeared before the Court as an unrepresented party. She told the Court that on 13thAugust 2012, a work colleague, Mr X, left an extremely lewd pornographic postcard with gay connotations on her work bench. She alleged that Mr X spread a rumour in the workplace and beyond, that she looked like a lesbian, because she had small boobs, and that she fancied another woman at work.
She said that she was distraught and extremely upset over this as it was untrue, and she became very sick as a result of her treatment in the workplace. On Friday 2nd May 2014, she wrote a two-page suicide note, photocopied it 80 times and handed it out to all her work colleagues. Following which she was put on sick leave.
On 28th May 2014 she met with the Respondent’s Chief Medical Officer who declared her fit to resume work. However, the Respondent refused to let her return and put her on paid special leave while a review of her allegations against colleagues was being investigated. The Complainant said that she was the only person put on special leave, the named colleagues in her complaints were not. This review was carried out in June 2014 by Mr Fergus Byrne (The Byrne Review). In his findings Mr Byrne found Mr X guilty of sexual harassment and was given a verbal warning. The Complainant and her representatives, the Communications Workers Union (CWU) alleged that the review was flawed. The Complainant disagreed with the contents of the review and the fact that a witness she asked to be called was not called. Mr Séan Madden, HR Manager Galway issued a written apology to her on 16th October 2014 for omitting to include her nominated witness.
The Complainant wrote to Mr Mark Graham, Head of Employee Relations, on 28th July 2014seeking statements of those people who gave evidence in the review. These were not provided to her, therefore the Complainant stated that she could not appeal the outcome of the review.
The Complainant said that in August 2014 she met with Mr Gerry Verschoyle from the HR Department to discuss her return to work. She said that this meeting was a total disaster. She was asked to apologise to the two named colleagues, Ms B and Ms C for naming them in her suicide note. She said that this was never going to happen. She was asked if she would consider moving to Loughrea Mail Centre. She refused as this was the location of Ms A whom she alleged made unwelcome sexual advances towards her in 2005, therefore she said that she was appalled at the suggestion.
At the behest of the Respondent she was sent to Dublin, on 7thAugust 2014, to be assessed by Psychiatrist Dr John Sheehan. She said that he had no concerns about her return to work. However, when she returned on 22nd September 2014, after the Byrne Review had concluded, she was considered a suicide risk by the Respondent.
Issues giving rise to her dismissal
At a meeting with Mr Graham, on 16thSeptember 2014 regarding her return to work, she said she was furnished with a final Report of the Byrne Review. At this meeting it was confirmed that she was to return to work on 22nd September 2014. The Complainant said that Mr Graham informed her that the Report was private and confidential, and she was not to discuss its contents with any other employee of An Post. She agreed to this. She was also told to confine her interaction with Ms B and Ms C to work related matters. Mr Graham confirmed these instructions to her in writing by letter dated 17th September 2014.
The Complainant said that in a letter also dated 17thSeptember 2014 to Mr Graham (which had crossed in the post with his letter) she informed him that it was common knowledge among management since June 2014 that she was taking legal action against the Respondent which was also known to her family, friends and work colleagues. However, she confirmed that she would not discuss the Report with other employees. She requested mediation with Ms B. Mr Graham wrote again to her on 24thSeptember 2014 saying that he felt mediation was not an appropriate option at the current time. He also welcomed her assurance that she would not discuss the review with any other employee. However, she maintained that throughout the Byrne Review nobody in An Post maintained confidentiality and she questions why others were not required to maintain the same confidentiality.She referred to Mr Y, a Postman who informed both her sister and her daughter about her suicide note when he enquired about the Complainant’s health. It greatly upset both her sister and her daughter to hear about the suicide note.
The Complainant referred to her high-ranking trade union representative who at her oral appeal hearing made the remark that it was impossible to keep matters which relate to that process confidential particularly as all in the office knew what was going on and what it was about and that the Union was concerned that the Company were gagging only one employee – the Complainant.
The Complainant said that she found the instructions in the letter from Mr Graham dated 1st October 2014 very confusing where he instructed her not to talk to anyone about the review and that the matter would be treated very seriously if she did. She said that she found it a very strange letter.
The Complainant stated that on 9thOctober 2014, when she asked Ms B about her freepost she saw this as a work-related matter and consequently was not breaking the instructions given to her not to interact with Ms B. She said that she stood a bit back from Ms B as she was very afraid of her and asked her where the freepost was. When Ms B did not answer her she slightly raised her voice to say it again and when not answered she asked a third time. Ms B told her it was on the machine. The Complainant said that she was extremely upset that her freepost was left in a place that she could not find and that there were 107 pieces of freepost which was most unusual. She immediately brought it to the attention of management, and then went to her trade union representative to try to sort matters out.
The Complainant said that after the so called “altercation” she met and spoke with the D.S.M Mr Thomas Hehir. She said that Mr Hehir refused to believe that Ms B had a problem with her. She said that it was Mr Hehir who brought up the issue of the Review first. She denied that she was abusive to anybody that morning.
With reference to the investigation meeting of 13th October 2014 where she was suspended, she said that had she known the nature of the meeting beforehand she would have brought a trade union official to the meeting and not a work colleague with little English. She said that she became very upset and stressed when she realised the nature of the meeting.
She alleged that she was not given the minutes of the investigation meeting to agree and/or amend, which she disagreed with. She disputed that any investigation took place into the incident of 9thOctober 2014. She alleged that nearly 3½ months after her dismissal, on 6thNovember 2015, the Respondent decided to question, those involved, and the Respondent still declined to question her nominated witness or any of the many employees who witnessed the “altercation” on 9thOctober 2014.
The Complainant contended that the Respondent failed to follow their own Disciplinary Policy. She alleged that the Respondent never gave her the answer to the questions she raised with it concerning statements made by other employees and relied upon in her disciplinary process, contrary to clause 8.2 of the Policy. She disputed the Respondent’s contention that its refusal was based on the premise that she had asked leading questions. She said that she was never advised on how to rewrite the questions in a different format.
She also alleged that the Respondent refused to provide her with information to substantiate her position regarding the incident on 9thOctober 2014, e.g. she asked to be provided with the tachograph of the mail lorry for the morning in question and asked for the CCV footage. She said that others were shown the unedited CCTV footage but she was not.
She said that when challenged by the Complainant’s trade union representative about his evidence, Mr Hehir amended his statement and removed offending words.
The Complainant said that following the date of her disciplinary hearing on 29th January 2015, she had received no word from the Respondent until 22nd April 2015, when Ms Lillian Jones HR in Dublin wrote to her. She said that she was astonished by this letter as it was the first time she became aware that the Respondent had not carried out an investigation into the “altercation” of 9thOctober 2014. This was some 6½ months after she had been placed on suspension.
Furthermore, she contended that it was not until 6thNovember 2015 as part of her appeal hearing that the Respondent met Ms Healy and Ms B.
The Complainant referred to Ms B’s statement of 6th November 2015 where she claimed (i) that she didn’t hear the Complainant the first time she asked for the freepost. She said that in Ms B’s original statement, she claimed she didn’t know the Complainant was talking to her when she demanded her freepost, even though there was only the two of them present, (ii) she said she probably put the freepost on the strapping machine, but had no direct recollection of doing so.
The Complainant disputed the Respondent’s statement of 6thNovember 2015 that procedures had been put in place to ensure her smooth return to work.
The Complainant also disputed the Respondent’s allegation that she sought to place a degree of pressure on people as to the statement they might give in respect of her personal injuries claim. She said that this was never put to her throughout the disciplinary process, she was not investigated for same, and her dismissal was not connected to such an allegation. In that regard the complainant relied uponBank of Ireland v Gerard Macken and Helen Macken2014 No 1512S where Twomey J stated:
- “Where the Bank alleged the Mackens owed a certain sum of money, Justice Twomey stated, that something more than a bald averment is needed, even if that something more, is simply the exhibiting of one bank statement showing the amount due at a relevant date”.
The Complainant said that she will never be in a position to work again, therefore she accepted that she incurred no loss.
Witness Evidence
Evidence of Ms Triona Healy,
Ms Triona Healy, Working Leader, was called by the Complainant to give evidence on her behalf.
Ms. Healy said she was a Working Leader and the person who reported the incident between the Complainant and Ms B. She said that the night shift of 9thOctober 2014 was very busy and there was a delay on processing the freepost as a result. She told the Complainant that the freepost was ready for her to work on. She was heading to the Bullring when she heard a loud voice and heard the Complainant say that someone had hidden her freepost. Ms Healy said that Ms B was distraught, trembling and crying and the Complainant was agitated and angry. The witness said she was upset by the encounter but tried to pacify both. Then the Complainant’s union representative approached Ms Healy to see what was happened. The Complainant was intent on speaking to the union representative.
Ms Healy said that she then attended a meeting with the Complainant and Mr Hehir DSM in his office. The Complainant was agitated and vocal, she claimed that her freepost had been hidden.Ms Healy advised the Court that when she questioned Ms B, Ms B told her that she did not hide the freepost, that she just left it over there so there would be no contact between her and the Complainant, as she was not finished her own work.
Under cross examination by Mr McGreal, the witness said that at the meeting in Mr Hehir’s office along with the union representative, she recounted the events which had unfolded between the Complainant and Ms B. Ms Healy said that it was very distressing for everyone involved. In the meantime the Complainant was waiting to speak to Mr Hehir. She said that when the Complainant joined the meeting she was very agitated and kept repeating that someone had hidden her freepost. Ms Healy said that she organised cover for Ms B’s shift as Ms B was so distraught.
Ms Healy said that at the meeting in Mr Hehir’s office, the Complainant was dropping other peoples’ names that had nothing to do with what happened. The witness said that the Complainant said to her “I know what you said upstairs”, the witness understood this to be a reference to the statement she made regarding an incident involving the Complainant a number of years previously. She said that she was very perturbed by the incident. The witness said that she did not reply to the Complainant as she was so upset she was not going to put herself in line for the Complainant to shout at her.
The witness said that at the meeting in the office, the Complainant was very annoyed and agitated. She was random and all over the place, not making an awful lot of sense.Mr Hehir asked was she OK to drive home.
Evidence of Mr Mark Graham
Mr Mark Graham, Head of Employee Relations, gave evidence on behalf of the Respondent. He said that his first involvement with the Complainant, came about in May 2014 when Mr Madden informed him about the suicide note which the Complainant had written and distributed to all her work colleagues. Mr Madden was anxious about the Complainant’s health and about the allegations made in the letter where the Complainant named certain employees. Mr Graham said that this concerned him, and he contacted the Support Services Officer and requested Ms Elaine Birmingham, Employee Relations Manager to travel to Galway. He then set up an investigation into the allegations made in the Complainant’s suicide note. He appointed an independent investigator, Mr Fergus Byrne to carry out the investigation. The focus of the review was to investigate three allegations made by the Complainant, (i) an alleged incident involving Ms A in 2005; (ii) an allegation that Mr X had sexually harassed her in August 2012 by placing a pornographic postcard on her workbench and (iii) an allegation that Ms B was responsible for spreading “gay” rumours about her. When the Complainant said that she did not want the 2005 incident investigated, that was not pursued. The investigators completed their work, entitled “The Byrne Review”. It held that the 2012 incident did constitute sexual harassment and found that there was no substance to the third allegation. The Complainant did not appeal the Review.
Mr Graham said that he arranged to meet the Complainant on 2ndSeptember 2014 to discuss the report and the requirement for confidentiality and to discuss her return to work, at which point she had been deemed fit. He said that he was anxious to ensure that she had good working relationships with her colleagues when she returned to work. However, she told him that she wanted to get back to work in order to confront Ms B. She also mentioned her personal injury claim and how she wanted to use Ms B as a witness. Mr Graham said that he reminded her that her claim was against the Respondent and not against Ms B.
He said that the next meeting he had with the Complainant was on 16thSeptember 2014, when he outlined certain conditions to her regarding her return to work. He told her that she was not to have any contact with Ms B, unless it was work related. He instructed her that the matters dealt with by the Bryne Review were to be kept strictly confidential and could only be discussed with her solicitor in terms of her personal injuries claim.
Mr Graham said that he came down to Galway from Dublin especially to impress on her the need for confidentiality and told her to put the past behind her and to have no contact with Ms B unless it was work-related. He said that he may not have told her her job was on the line but he was very clear on the instructions he was giving her. Mr Graham said that he was so concerned about confidentiality that not only did he speak to the Complainant but he also wrote to her to confirm his instructions. She was to return to work on 22ndSeptember 2014.
He said that he requested Mr Hehir to ensure that Ms B and the Complainant were kept apart as much as possible.
Under cross examination, the Complainant questioned the witness about mediation. Mr Graham said that Mr Gerry Verschoyle, Manager from Head Office was sent to Galway to speak to the Complainant about the possibility of mediation. He spoke to Ms B and Ms C, both of whom were not interested in mediation. Therefore, as all parties need to sign up to mediation, that was not a possibility.
The Complainant said that when Mr Graham instructed her about the need for confidentiality, she said that she had already told her family.
Evidence of Mr Séan Madden
Mr Séan Madden, HR Manager, Galway on behalf of the Respondent, said that the Complainant had telephoned him a couple of times in the office to discuss various issues she raised, and he advised her on the procedures to follow. He told the Court that he had a meeting with the Complainant after she had met with Mr. Graham. She said that she had not spoken to her colleagues about the Byrne Review Report, however, she had spoken to her husband about it. He said that after she returned to work in September 2014, she wrote to him on 30thSeptember 2014 and said that for the purposes of her personal injury claim she was going to seek statements from those work colleagues who had been interviewed for the Byrne Review. He highlighted to her the importance of confidentiality and warned her if she proceeded, it could have serious implications for her employment. The Complainant did seek such statement from her colleagues, this caused major anxiety among the workforce. The witness said that he wrote a memo to Mr Rory Delaney, HR Manager, GPO on 24thOctober 2014, to refer this matter to be dealt with under the Respondent’s disciplinary procedures.
Mr Madden recounted how he was informed of the events of 9thOctober 2014. He said that he had a call from Mr Hehir who informed him of the altercation between the Complainant and Ms B. Mr Madden said that he held a meeting on 13thOctober 2014 at which the Complainant was represented by a work colleague. He asked her to explain what happened on 9thOctober. She accused someone of hiding her freepost and said that it could not have been anyone other than Ms B. Mr Madden brought up the subject of confidentiality. The Complainant said that she knew what both he and Ms Healy were up to when he told lies at the Byrne Review investigation. She said, “I saw your lies too”. He said that she was very aggressive at the meeting. The Complainant said that she intended on bringing a case to court and that both managers would have to account for themselves.
Mr Madden said that she referred to a statement made by Ms B at the Byrne investigation where Ms B accused the Complainant’s friend and representative Ms D, of bullying. At the meeting the Complainant asked Ms D to back her up on this. Mr Madden said that she was putting pressure on Ms D to do so. He felt that this was inappropriate.
The witness said that the Complainant was very aggressive at the meeting and was calling Ms Healy and Mr Hehir liars and threatening to take them to court.
Mr Madden told the Court that he felt that if she were to return to work that she had issues with Mr Hehir, Ms Healy and Ms B and in the circumstances, it would be difficult to contain the situation. Mr Madden said that he did not think it was appropriate to let her go back on the floor to confront other workers.He said that he took a break in the meeting, called HR in Dublin and decided to place the Complainant on suspension with pay pending an investigation by HQ in Dublin and because of her conduct with her managers. He was aware of her suicide note and accordingly advised her to go to the Support Services Officer.
Under cross examination by the Complainant, the witness said that the Complainant should have brought her issues regarding the missing freepost to her manager, Ms Healy instead of shouting at Ms B. Mr Madden was asked why he had not supplied tachograph details to the Complainant in order to ascertain when the freepost had been delivered to the Mail Centre, Mr Madden said that he did not see the relevance of it. He admitted that in his letter to the Complainant confirming her suspension, he did not mention that her job was on the line, however, he said that he verbally told her.
Mr Madden told the Court that the meeting was held under the first step of the disciplinary procedures. He said that the reason she was suspended was due to her very aggressive stance at the meeting and the fact that she had called him and two other managers “liars” and he was concerned that she might accuse others of the same thing. He said that he completed a full report on the matter for HQ.
Evidence of Ms Triona O’Sullivan
Ms Triona O’Sullivan Employee Relations Manager, Dublin gave evidence on behalf of the Respondent. She told the Court that she job shares with Ms. Lillian Jones and both are responsible for processing disciplinary cases at national level which are serious and could potentially give rise to dismissal. She said that she received a letter from Séan Madden, HR Manager Galway outlining the issues with the Complainant.
On 19thNovember 2014, she wrote to the Complainant outlining in detail the events which had come to her notice leading up to the disciplinary proceedings against her. This letter informed her that the matter was serious and invited her to respond and or to have an oral hearing. A number of documents were attached to allow her to respond.
Ms O’Sullivan said that she received about 50 letters from the Complainant in return. As the Complainant was represented by a Solicitor at the time, Mr O’Sullivan copied her letter to her Solicitor. The Complainant responded with a 28-page letter and sought an oral hearing.
The oral hearing was held on 29thJanuary 2015, and was attended by Ms O’Sullivan, Ms Lillian Jones, Mr John Tansey, CWU (Complainant’s representative) and the Complainant. At the meeting the Complainant had a list of questions and she sought answers to questions she had about the Byrne Review. Ms O’Sullivan said that she answered those questions which were relevant but she had no knowledge of the Review. However, she was aware that it was confidential and the Complainant was not meant to discuss it. Ms O’Sullivan said that despite the instructions given to the Complainant regarding confidentiality, the Complainant had discussed the Review with Ms Healy, Mr Hehir and Ms B. Ms O’Sullivan said that the Complainant had said it was her right to discuss it.
Ms O’Sullivan said that the original reports to her were that the Complainant had had an altercation with Ms B on 9thOctober 2014 despite instruction not to have contact with her and that she had called her managers “liars”. At the oral hearing, the Complainant reclassified these as “untruths”.
Ms O’Sullivan said that following the oral hearing and prior to a decision being made, the Complainant sent letters to 30 of her colleagues seeking statements and informing them that she expected them to give evidence in court on her personal injuries claim. This was despite the instructions given to her to keep matters confidential. Ms O’Sullivan said that she decided this should form part of disciplinary investigation as the employees concerned had complained about the letters, she informed the Complainant and allowed her an opportunity to respond.
Under cross examination by the Complainant, Ms O’Sullivan was asked how she had investigated the incident which occurred on 9thOctober 2014, she answered that it was based on statements from Mr Hehir, Mr Healy and Ms B. The Complainant was provided with an opportunity to respond. It was also based on questions which the Complainant had asked to be put to the witnesses. However, she accepted that not all of the Complainant’s questions were put to those people who were interviewed. Ms O’Sullivan stated that this was because those questions were not relevant to the disciplinary issue she was investigating but had to do with the Byrne Review, which was not before her.
Ms O’Sullivan was asked if the Complainant’s letters to her work colleagues regarding her personal injury claim was an issue which led to her dismissal. The witness replied that yes, the impact of these letters on staff was taken into account as was the Complainant’s response to the issues raised therein. Ms O’Sullivan said that she did not suspend the Complainant and did not know under what section of the procedure Mr. Madden had suspended her. Ms O’Sullivan confirmed that she had authority to dismiss delegated to her by Mr John Dandy, HR Manager HQ, following a submission to him on 16thJune 2015.
Evidence of Mr John Keegan
Mr. John Keegan, Head of Organisational Development at the material time, (he is now Head of HR), gave evidence on behalf of the Respondent. He told the Court that as Ms Graham had prior involvement with the Complainant, he was asked to hear the Complainant’s appeal, otherwise it would be normal for the Head of HR to hear such an appeal. He said that he had been involved in similar appeals before. In this case, he said that there was lots of correspondence, a number of different parties and numerous documents. He said that he spoke to the key parties. By letter dated 6thAugust 2015, he informed the Complainant that he would be hearing her appeal of the decision to dismiss her. As the Complainant wished to have her hearing in her workplace, it was held on 19thAugust 2015 in Galway. The Complainant had written to the witness on 12thAugust 2015 stating that her appeal was compromised by a lack of information regarding the reasons for her dismissal and stating that information had been withheld from her. Mr Keegan sought to reassure her and he said he was determined to give her clarity at the oral hearing.
The appeal hearing was held on 19thAugust 2015. The Complainant was represented by Mr Séan McDonagh, National Officer, Communications Workers Union. The appeal meeting lasted about an hour and a half. Mr Keegan said that by letter dated 27thAugust 2015, the Complainant confirmed that after careful reading of the record of the oral hearing she was satisfied that it was an accurate account of her appeal hearing and she did not wish to make any changes, she said that “the record is in order”.
Mr Keegan stated that when he received this letter from the Complainant he decided that he had enough information to proceed and make a decision. He said that he was mindful to go through the issues carefully. At the oral hearing he had made efforts to put the Complainant at ease, to allow her trade union representative the opportunity to set out the basis of her appeal, and he would consider all factors in the appeal. He said that Mr Mc Donagh was given every opportunity to make any statements/comments he wished. He said that the purpose of the hearing was to hear the basis of her appeal, however, the Complainant was intent instead on asking questions.
Mr Keegan said that suspensions are unusual, however, he understood that there were concerns that her return to the workplace could give rise to difficulties, and as this was Mr Madden’s primary concern he was of the view that it was appropriate in the circumstances.
Mr Keegan said that he came to the view that the Complainant’s interactions with management on 13thOctober 2014 were not normal, he said that using the term “lied” was a concern, the nature of such language was not appropriate. He said that half of the oral meeting was about the Complainant wanting to confront her work colleagues. He said that although she had not appealed the Byrne Review, she was constantly referring back to it.
Mr Keegan said that that he was most concerned that the Complainant was intent on securing witness statements from her work colleagues for her personal injuries claim and she had informed her colleagues that she intended to call them as witness so that she could question them in the High Court. He said that he feared for the individuals concerned as they had made complaints to management regarding these letters and said that they were most anxious and distressed about this development. These letters were sent to staff who had been interviewed in connection with complaints made by the Complainant and investigated as part of the Byrne Review. Mr Keegan said that as the Complainant had been instructed not to discuss the contents of the Byrne Review or any issues linked to it with any employees, therefore this action formed part of the disciplinary process as it was viewed as part of the breach of confidentiality.
As part of his evidence Mr Keegan presented a copy of an internal memorandum dated 25thMay 2015 from Mr Madden to Mr Rory Delaney, HR Manager, GPO. In that memorandum Mr Madden refers to the above complaints made by employees over the letters received by them from the Complainant. It states that Ms B was one of the employees to receive such a letter. Ms B told her manager that she felt threatened by the Complainant as her letter stated that the Solicitor had a copy of Ms B’s statement and she may be subpoenaed to appear in court.
Mr Keegan said that the Complainant was given an opportunity at the appeal hearing to respond to this allegation. He said that in the letters to her colleagues the Complainant provided them with an opportunity to elaborate on the statements they had given to the Byrne investigation and in some cases, she implied that if they wanted to revise their statements it may not be necessary for them to appear in court. Both Ms B and Ms C received these letters and were most anxious about them. Mr Keegan stated that this was a breach of the instructions given to her by Mr Graham and was considered to be a serious breach. In her defence the Complainant informed Mr Keegan that she had been instructed by her Solicitor for her personal injuries case to seek such statements. Mr Keegan told the Court that while it was appreciated that her solicitor had advised her to seek information, it was the manner she went about it that concerned him, he said it was inappropriate.
Mr Keegan said that the Complainant’s sharing the contents of Ms B’s statement to the Byrne investigation where she mentions Ms D was wholly inappropriate and contrary to the instructions given to her by Mr Graham. He said that the Complainant had informed Ms D of Ms B’s comments about her and her only answer was that Ms D was going to find out about those comments in any event, however, he said that this did not excuse the seriousness of her actions, which she did not seem to grasp.
Mr Keegan confirmed that after the Complainant introduced CCTV footage of the 9thOctober 2014 incident, he then had to speak to other people - Ms. Healy; Mr Hehir and Mr. Madden. He sent a report of these interviews to the Complainant.
On 27thNovember 2015 in a comprehensive letter to the Complainant, which was supplied to the Court, Mr Keegan said that he gave her an update on the progress he was making in her appeal and shared his initial observations on his review of the information made available to him. He clarified the potential grounds for her dismissal and invited her to respond. This letter was copied to Mr McDonagh, her trade union representative.
The Complainant responded to him by letter dated 7thNovember 2015, she questioned the use of the term “persistent” failure to adhere to management instructions included in the grounds for her dismissal. She recounted the incident which occurred on 9thOctober 2014 and the allegation that Ms B left her freepost on the strapping machine. Mr Keegan said that this was not material to the incident at issue. He said that she saw herself as the victim and that the outcome of the Byrne Review was an injustice to her as she alleged that individuals had deliberately intended to mislead the Byrne investigation.
On 26thJanuary 2016, Mr Keegan wrote to the Complainant with the outcome of her appeal. He informed her that having reviewed all aspects of her appeal he had decided to uphold the decision to dismiss her. The witness was asked if he had considered alternatives to dismissal. He said that he had given consideration to what the appropriate sanction would be. He had thought about giving her a final written warning but was anxious about the Complainant returning to the workplace. He said that since the Byrne Review the Complainant’s relationship with her colleagues was a major concern, there was significant conflict with Ms B, who had been the subject of her complaint which was investigated in the Byrne investigation and the Complainant had already indicated that she had issues with Ms B which she intended to deal with on her return. Furthermore, the Complainant’s previous interactions with management indicated that there could be further difficulties. He said that he considered possible transfer options for the Complainant to other depots, however, as there were employees in these depots which the Complainant had previous difficulties with, he decided that a transfer was not feasible. He said that as dogs were a problem for the Complainant, outdoor work as a postal delivery operative was not feasible.
The witness was asked if the Complainant’s personal injury claim and/or her suicide note were the reasons for her dismissal. He replied that they were not.
Under cross examination the Complainant questioned Mr Keegan about the incident on 9thOctober 2014 and asked why witnesses had not been questioned until 13 months after the incident. Mr Keegan said that he spoke to those who were primarily involved in the incident. He said while there were some inconsistencies he ultimately formed a view that the Complainant approached Ms B with an attitude, that she upset Ms B and Ms Healy had confirmed this. Therefore, he said that there was no reason to speak to any others about the incident.
The Complainant’s Evidence
The Complainant confirmed that her submission to the Court which she read out at the hearing on 24thOctober 2018 was her evidence-in-chief to the Court.
Under cross examination, the Complainant was asked if looking back she would do anything differently, she said that she would have to think about it. When asked about her reference to accusing people of telling lies she said that she wished she could have expressed herself better. She was asked about a letter dated 8thApril 2013 which she wrote to Mr Madden following a previous letter also addressed to him dated 1stApril 2013, in which she stated that she was suicidal. In her letter dated 8thApril, she told Mr Madden that she did not want to be referred to a psychiatric unit. She had lied about being suicidal. She said that this all followed the pornographic postcard incident.
When asked about her return to work in September 2014 she was asked if she was willing to participate in mediation with Ms B and Ms C, she said that she was nervous about returning to work and meeting Ms B. However, she would speak to them but would not retract that they had lied about her. The Complainant was asked if she did anything wrong on the night of 9thOctober 2014 incident, she replied that she did nothing wrong.
The Complainant was asked who she claimed had lied as part of her complaints and in the course of proceedings involved, she named the following people: -
- Ms B
Mr Madden, HR Manager, Dublin
Ms Healy, Working Leader
Mr Hehir, DSM, Galway Mail Centre
Mr Graham, Head of Employee Relations
Ms Freda, McMahon, Respondent’s Solicitor
Dr O’Reilly, Chief Medical Officer
Mr McGreal, B.L.
It was put to the Complainant that in Mr. Graham’s evidence, he said that he was concerned about the Complainant’s return to work as she had told him that she was anxious to confront Ms B. The Complainant was asked if this was correct, the Complainant denied this.
The Complainant said that she believed that she was dismissed due to her personal injuries case and her suicide note, however, she accepted that the oral hearing, when she was represented by Mr McDonagh, that neither of these issued had been raised. She said that the Respondent had dismissed her because they cannot fix what happened and she might commit suicide.
The Law
Section 6(1) of the Acts provides: -
- "Subject to the provisions ofthis section, the dismissal ofan employee shall be deemed, for the purposes ofthis Act, to be an unfair dismissal unless, having regard to all the circumstances there were substantial grounds justifying the dismissal. "
Findings and Conclusions of the Court
The fact of dismissal was not in dispute, therefore, there is a statutory presumption that the dismissal was unfair unless there were substantial grounds justifying it. The Respondent’s case is that the Complainant’s dismissal for gross misconduct was justified on the basis of the arguments put forward as cited above.
In determining whether a decision to dismiss is fair or unfair the Court must examine whether or not there were substantial grounds justifying the dismissal and whether the process through which the decision was arrived at was fair and reasonable having regard to all of the circumstances.
The Court was presented with extensive documentation on this case and was informed by the Respondent that considerably more documentation existed on the case due to the level of correspondence entered into by the Complainant. In reaching its decision the Court has taken account of all written and oral submissions of both parties and has had full regard to the evidence adduced in the course of the appeal.
The Court notes that difficulties initially arose for the Complainant in 2005 when an alleged sexual advance was made towards her by a work colleague. No complaint was made about this incident at the time. Events escalated in August 2012 when a work colleague left a pornographic postcard on her workbench and gay rumours were spread about her. In May 2014 the Complainant circulated a suicide note to all her work colleagues.
The Complainant did not make a formal complaint about the August 2012 incident until March 2013. At the time Mr X was interviewed by management and the matter was dealt with under the Respondent’s Disciplinary procedures. Mr X was reprimanded and issued with a warning. He apologised and shook hands with the Complainant, she accepted his apology at the time. The Complainant seemed to be satisfied with the resolution of the issue and she thanked her Manager for dealing with the matter. Subsequently the Complainant raised the issue again as being unresolved. The Respondent then carried out an investigation (the Byrne Review) into the incident and into a further incident referenced in the Complainant’s suicide note, where she alleged that Ms B had spread rumours about her sexuality. The Byrne Review held that the allegation made by the Complainant that she was the subject of ongoing rumours about her sexuality was not proven. It could find no evidence of “mobbing” as alluded to by her and held that the Complainant’s description of events was inconsistent and contradictory. On 3rd November 2014, the Complainant informed Mr Graham that she did not intend to appeal the Byrne Review. The Complainant had been referred to the Occupational Support Service in October 2013. The Byrne Review made recommendations to Management that the Complainant should receive counselling.
In his evidence to the Court Mr Graham said that following the suicide note the Respondent was most anxious about the Complainant’s mental state and about the impact such a suicide note had on her work colleagues, particularly those employees who were specifically mentioned in it as contributing to her rationale for writing the note. He requested Ms Birmingham to travel to the Galway Mail Centre to assess the situation and to talk to the staff in the Centre, including the Complainant and report back. He also set in motion medical assistance for the Complainant while at the same time instructing her not to converse with Ms B and Ms C, unless required to do so on a work-related basis. The Court is of the view that the latter step by management was appropriate in the circumstances where the Complainant had informed management that she wished to get back to work to confront Ms B. The Complainant was also provided with a copy of the Byrne Review and associated documentation, including witness statements, on a strictly confidential basis.
In the documentation furnished to the Court, the Complainant submitted a copy of a partially redacted email sent from Ms Birmingham on their return from visiting the Galway Mail centre. Ms Birmingham had sent the email which was dated 10thJune 2014, to Mr Graham informing him that the distribution of the suicide note had caused great distress to the staff in the Galway Mail Centre and that staff were anxious about working with the Complainant going forward. They were concerned that if she was capable of doing something which they considered quite irrational and malicious, what else might she be capable of. Ms Birmingham stated that the Complainant expressed no regret for the distribution of the suicide note and the naming of staff in it and did not appreciate that there might be any apprehension about her return to work. Ms Birmingham stated that in her view the Complainant expressed no insight into the potential upset caused to those named in her suicide note. She recommended an investigation into the matter, in the meantime both herself and Mr Madden were strongly of the view that the Complainant should not be returned to the workforce.
In response to a question put to the Complainant during the hearing, the Complainant was asked if she would apologise to Ms B and Ms C, she replied that this was never going to happen.
The Court notes that a record of a meeting held on 26thJune 2014 with Ms B and the investigation team, records that Ms B knew nothing about the rumours until the Complainant’s suicide note and that she was very worried about the prospect of the Complainant’s return to work. She described the working conditions when the Complainant was present as unbearable.
In advance of and shortly following her return to work after illness on 22ndSeptember 2014, the Complainant was instructed by Mr Graham that she was not to discuss the Report and/or the interviews with any other employees. On 30thSeptember 2014, the Complainant wrote to Mr Madden stating that she was in possession of a signed statement from Ms B in which the Complainant alleged that Ms B was accusing Ms D of bullying behaviour which she said Ms D was unaware of. She had discussed this with her family and extended family some of which lived near Ms D. She said that she was taking a court case against the Respondent and would be using Ms D as a witness. Mr Madden spoke to the Complainant and again cautioned her against discussing the contents of the report and/or the witness statements and that should they become public knowledge she would be responsible and could have implications for her employment. This was confirmed to her in writing on 1stOctober 2014 by Mr Graham. Within a short period following her return to work the Complainant was involved in an incident with Ms B which greatly upset Ms B.
Having considered the extensive material on this case, the Court is of the view that the Complainant was clearly distressed by the postcard incident and the alleged rumours about her sexuality, whether these rumours were substantiated or not, she was obviously impacted by the perception of such rumours and all of this had a major impact on her. Despite the assistance given to her by the Occupational Support Services and the Chief Medical Officer and his staff this perception developed into a major problem for the Complainant. However, the Complainant seemed to be oblivious to the significant impact her actions had on her work colleagues and the atmosphere it created in the workplace.She did not accept that the distribution of the suicide note was in any way inappropriate. Similarly, the Complainant seemed to have no concept of the impact her aggressive tone and threatening actions had on management and others. She accused most people she encountered of lying and repeatedly referred to taking them to court. In May 2015, several members of staff in the Galway depot made complaints to management that they had received letters from the Complainant regarding statements they made to the Byrne investigation and informing them that these statements would be used in the High Court where they would be subpoenaed to appear as witnesses. These employees were upset and annoyed with these letters. This was despite the fact that the Byrne Review statements had been given to her on a strictly confidential basis. The Complainant said that she had been advised by her solicitor to seek such statements as part of her personal injuries case.
In support of her claim that her dismissal was an unfair dismissal, the Complainant alleged that the Respondent failed to follow their own Disciplinary Policy: -
Suspension
The Complainant alleged that her suspension from work on 13th October 2014 was in contravention of the Respondent’s “Discipline Policy & Procedure”. The Court notes that details of her suspension from work were given in a lengthy letter to her, dated 19thNovember 2014 from Ms Jones, Human Resources which outlined the matters giving rise to management’s concerns. This letter described how at the conclusion of the meeting with Mr Hehir on 9thOctober 2014, she was instructed to attend a meeting on 13thOctober 2014. This instruction was confirmed in writing in which she was advised that she had the right to be accompanied by a trade union official/a friend.
The Court notes that at the meeting on 13thOctober, the Complainant was placed on paid suspension from work pending an investigation into the circumstances surrounding the altercation between Ms B and the Complainant on 9th October 2014 and into her subsequent interaction with Mr Madden and Mr Hehir at the meeting on 13thOctober 2014 where she became aggressive and threatening towards them.
The Respondents’ policy at Clause 8 states: -
- “There may be instances where the continued presence of an employee at work is inappropriate while matters are addressed with him/her in accordance with this policy and associated procedure. Where, in such instances, an employee is suspended from work as a precautionary measure he/she will continue to be paid provide they fully co-operate with any investigation that may be undertaken into the matters concerned.”
The Court is satisfied that in the circumstances as described, the continued presence of the Complainant in the workplace was inappropriate following her return to work and the incident which occurred on 9thOctober 2014 and due to her aggressive interactions with her Manager on 13th October 2014. The Court accepts the Respondent’s view that it could not allow a similar altercation or incident to occur pending the result of any action it might take following the investigation into the circumstances surrounding the altercation and the subsequent statements made by the Complainant to Mr Hehir. Therefore, the Court does not find that there was a breach of the Respondent’s procedures nor of the rights to natural justice when she was suspended from work on 13thOctober 2014.
The Court notes that following the meeting on 13thOctober 2014, Ms Jones ER Dublin HQ, wrote to her and explained that she was now in a disciplinary process which could lead to her dismissal and was advised to have her trade union representative present with her for future meetings. She was also advised that she could furnish any explanation, provide union representation or any other representation that she may wish to offer in respect of the matters at issue. She was also offered an oral hearing to hear her side of the matters at issue.
Clause 8.2 of the Respondent’s Policy states:
Provision of Information in the Disciplinary Proceedings
- The Company is not obliged to afford an employee the right of cross examination of any person or persons who has given a statement which is relied upon in initiating or continuing disciplinary proceedings. In instances where a final written warning or dismissal is being considered, however, the employee may raise questions he/she would wish to have put to the party concerned and the Company will do so, within reason, as part of any process of further enquiry following the employee’s initial response to the notice of disciplinary proceedings.
The Complainant complained that she was never given the opportunity to cross examine statements made by others relating to the incident which occurred on 9thOctober 2014 and did not receive answers to the questions she submitted. The Complainant wanted answers to why Ms B had left her freepost on the strapping machine, why she had not answered her when she asked Ms B where the freepost was. She wanted to know what time the post had been delivered and had sought the driver’s tachograph information.
Mr Keegan in his observations on these issues as part of the appeal process considered these questions immaterial in the context of the Complainant’s agitated state in her dealings with Ms B, who he held was understandably trying to avoid any contact with the Complainant on her return to work. The Court is of the view that in such circumstances there were reasonable grounds for not having these questions put to others.
Discipline Policy
Having reviewed the Respondent’s disciplinary policy in its entirely, the Court is satisfied that the Respondent observed the policy at each stage of the process. The Respondent carried out very thorough investigations, presented all evidence and documentation to the Complainant, gave her an opportunity to respond at all stages. The Complainant was represented at all disciplinary/appeal hearings and meetings. At the disciplinary and appeal process she was represented by two of the trade union’s most high-ranking officials. The decision to dismiss was made by Mr Dandy, HR Manager, Dublin on the recommendation of Ms O’Sullivan following the investigation by both herself and Ms Jones, who shared work responsibilities in the Employee Relations Department in Dublin.
The Court was highly impressed with the thoroughness of Mr Keegan’s appeals process. It is clear that he took great care and diligence to examine each aspect of her appeal and to keep her and her trade union official informed at each stage of the process. It is of some concern to the Court that the process took a substantial period of time, the first disciplinary hearing was held on 13thOctober 2014, the decision to dismiss was given on 22ndJuly 2015 and the outcome of the appeal was given on 26thJanuary 2016.
The Court accepts that the Respondent was constrained by the extensive volume of material associated with her case, by the complexity of the issues involved and the travel from Dublin to Galway to meet people as part of his deliberations. However, once commenced, the disciplinary process was conducted properly and to the highest standard. The Complainant was given every opportunity to express her concerns on any relevant issues.
Grounds for Dismissal
- Failure to Adhere to Management Instructions and Repeated Breaches of Confidentiality
In their findings, Ms O’Sullivan and Ms Jones concluded that the Complainant should be dismissed on the grounds of serious misconduct arising from her persistent failure to adhere to managements instructions regarding her interaction with another named colleague; her repeated breaches of confidentiality and her unacceptable conduct towards her managers.
Mr Keegan in his findings on the appeal of the Complainant’s dismissal held that the Complainant had openly defied the clear instructions given to her by Mr Graham not to have any contact with Ms B or Ms C on her return to work. In defiance of those instructions the Complainant raised matters covered in Ms B’s statement to the Byrne investigation with Ms D. This occurred shortly after Mr Graham had given specific instructions to her on 29thSeptember 2014 and again in writing on 1stOctober 2014.
Moreover, by raising evidence given to her as part of the Byrne Review findings, with a number of her managers on 9thand 13thOctober 2014, the Complainant had again defied the clear instructions given to her by Mr Graham.
Furthermore, in relations to her actions in May 2015 the Complainant was accused of breaches of confidentiality when she wrote to a number of her colleagues. The Complainant was of the view that once she was taking legal action against the Respondent, then she had a right to discuss the report and witness statements with those who gave evidence at the investigation. This was despite Mr Madden’s warning to her that it she did so it could jeopardise her employment. She made the point that the Respondent was well aware of her legal action and therefore it was unreasonable of them to impose a confidentiality restriction against her. In any event she said that she had legal advice to seek such statements from the witnesses.
The Court is of the view that such findings by management and by Mr Keegan on appeal, were reasonable in the circumstances and once again it appears highly significant to the Court that the impact of the Complainant’s actions on her work colleagues and management, which may appear somewhat innocuous on the face of it, however, in the surrounding circumstances prevailing at the time, were of major significance and management had genuine concerns for its workforce in the Galway Mail Centre. The Court fully accepts the Respondent’s view that it had a duty of care to its employees which was being seriously compromised by the actions of the Complainant. The instructions given to the Complainant on her return to work were intended to avert any incident occurring in circumstances where the relationship between the Complainant and her work colleagues, and in particular Ms B, were evidently strained. The Court also notes that the Respondent made every effort to address its duty of care toward the Complainant, as a vulnerable employee, when it offered her and provided her with access to its welfare/medical services. However, the Complainant was dissatisfied with the services and proceeded to make formal complaints against them to their respective governing bodies.
The Court is of the view that it is significant that the Complainant sought every avenue to litigate issues she was not prepared to accept were finalised, e.g (i) the 2012 incident with Mr X and the postcard which was dealt with at the time, yet she revived the issue later, (ii) while she did not appeal the Byrne Review Report, a course of action which was open to her, she sought every opportunity to reopen it and threatened those who were interviewed for the report to be accountable at the High Court. All of which had major impact on the workplace, which the Complainant seems to have had no regard for or insight into. Therefore, the Court considered it reasonable for the Respondent to impose restrictions on her in order to contain further disharmony in the workplace and prevent further disruption.
Unacceptable Conduct Towards Her Managers
Having investigated the matter both management and Mr Keegan on appeal found that the Complainant’s behaviour to her managers, Ms Healy, Mr Hehir and Mr Madden were unacceptable and confrontational in nature. It is not disputed that she called her managers liars and threatened to bring them to court where she said that they would have to account for themselves.
Mediation
It was clear to the Court why the Respondent did not pursue mediation as an option to resolve the difficult working relations which existed when the Complainant steadfastly refused to apologise to Ms B and Ms C. The Court is also influenced by the fact that the Complainant had previously reconciled with Mr X over his behaviour, however, she subsequently proceeded to pursue a further complaint over the issue and refused to accept the outcome of that process.
Conclusions of the Court
The Court is satisfied that management and subsequently Mr Keegan’s review in the appeal assessed the facts and explanations presented by the Complainant and made a decision based on those facts and the impact the Complainant had on her work colleagues and management, whereby she appeared to have no insight into the impact of her behaviour on others. This was particularly so in circumstances were her colleagues were complaining to management about feeling pressurised and intimidated by her. The Court notes that they also examined possible alternatives to dismissal in weighting up their decision.
The Court notes that the Complainant had undergone a detailed disciplinary process which led to her dismissal. The Court accepts that Respondent’s contention that the Complainant had become unmanageable, was consuming a disproportionate amount of management time and resources, was making allegations against members of staff and management that were undermining morale and distracting attention of staff and management from the needs of the business. The Court accept that the Respondent made every effort to attempt to normalise relations within the company, however it was left with no option but to terminate her employment.
In all the circumstances of this case, the Court is of the view that the decision to dismiss the Complainant was within the range of responses that could be expected from a reasonable employer in the prevailing circumstances.
Determination
In light of the forgoing, the Court is satisfied that, there were substantial grounds justifying the Respondent in deciding to terminate the Complainant’s employment on the grounds that she had clearly defied management instructions and had acted inappropriately towards her managers and her colleagues. The Court is satisfied that the Respondent adhered to its Disciplinary Procedures and applied the principles of natural justice to the Complainant. Accordingly, the claim herein must fail.
Therefore, the Court does not uphold the Complainant’s appeal. The decision of the Adjudication Officer stands.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
17 December 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.