UDD181

The decision was issued on 26 August 2016. The appeal was presented to the Court on 6 October 2016.

The case was the subject of a number of case management hearings over the course of 2017. The substantive matter finally came on for hearing before the Court on 14 December 2017.

The Complainant worked for the Respondent for a period of seven years. In and around 2013 the Complainant raised a number of complaints with the respondent regarding his treatment in the Company. The Company also raised a number of performance related issues with the Complainant.

Both sides exchanged a significant volume of correspondence regarding those matters and numerous meetings between local management and the Complainant took place over subsequent years.

Finally in March 2015 the Respondent invoked disciplinary action against the Complainant. This gave rise to a detailed procedure that was a model of good practice. At the end of that process Mr Jonathan Hanly a Director of the Company decided to issue the Complainant with a final written warning arising out of what it considered his unacceptable behaviour in the performance of his duties at work.

The Complainant appealed against that decision to Mr Robert Berry, Chief Executive, who was based in London and who travelled to hear the appeal. At the end of that process Mr Berry decided to uphold the sanction issued by Mr Hanly.

Outside of the disciplinary process Mr Berry held a further meeting with the Complainant on 26 May 2015 at which he invited him to take part in mediation in an effort to resolve the workplace issues. The Complainant refused to engage in such a process. Mr Berry then decided that mutual trust and confidence no longer existed between the Complainant and the Respondent and that the employment relationship had broken down irretrievably. He then terminated the Complainant’s employment with effect from 26 May 2015.

Section 6(1) of the Unfair Dismissals Act 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.

The fact of dismissal in this case is not in dispute between the parties. Accordingly the dismissal of the Complainant is deemed to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal.

In this regard the Respondent submits that the Complainant had undergone a detailed disciplinary process and had been found to have acted in a manner that justified issuing him with a final written warning. It noted that the Complainant had become unmanageable, was consuming a disproportionate amount of management time and resources, was making unfounded allegations against members of staff and management that were undermining morale and distracting attention of staff and management from the needs of clients and the business. It submits that when he refused to enter into a process to normalise relations within the company it was left with no option but to terminate his employment.

The Complainant disputes the version of events outlined by the Respondent. He submits that the Respondent company undermined his employment and set about undermining him personally and professionally, orchestrating his dismissal and rendering him unemployable in the sector. He submits that this policy was considered and calculated and manifested itself in a myriad of both small and large incidents that had a cumulative effect of attempting to portray him as the aggressor when in fact he was merely taking steps to protect his reputation, employment, income and security. He submits that there was nothing fair or inevitable about his dismissal. He submits it was a deliberate plot to destroy him.

The Court considered several hundred pages of notes, emails, minutes of meetings and exchanges of correspondence between the parties. Based on those documents, the submissions of the parties and the oral presentations made by each side the Court finds as follows:

The relationship between the Complainant and the Respondent had broken down.

The behaviour of the Complainant had been thoroughly examined through a fair and impartial procedure chaired by Mr Hanly that had concluded that it did not warrant the Complainant’s dismissal but rather that he be issued with a final written warning.

That decision had been thoroughly reviewed by Mr Berry and he had come to the independent conclusion that the Complainant’s behaviour did not warrant dismissal.

Neither did he conclude through that review that mediation was an appropriate measure in this case. Instead he decided on that course of action outside that procedure.

Accordingly it was not open to him to decide that the Complainant would be dismissed should he reject that offer. Such a serious consequence should have been outlined in advance to the Complainant and should have been linked to the disciplinary sanction outlined above. That did not happen in this case. And that is a failure of natural justice that cannot be easily overcome.

The Respondent relies on section 6(7) of the 1977 Act which states

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court , as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to insection 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) ofsection 7(2) of this Act.

Section 14 states

14.— (1)An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.

In this case the Respondent issued the Complainant with a comprehensive procedure to be observed before and for the purpose of dismissing an employee. On the face of it that is a very fair procedure and allows an employee to be aware of the charges he is facing, to prepare a defence and to be heard and represented in his defence before any decision to dismiss is made by the Company.

However the Respondent manifestly did not comply with any part of that procedure in this case.

However the circumstances in which the decision to dismiss do not stand in isolation of other events that had taken place in the employment over many years involving the Complainant. The Court finds that the Complainant had become unmanageable and was increasingly occupying management time and resources addressing unfounded and unsubstantiated accusations against other employees and members of management. This behaviour was having a severe adverse impact on the other members of staff and on the operation of the business. Accordingly an ongoing relationship between the Complainant and the Respondent was at best highly unlikely to succeed. The Court finds that the bond of trust between the employer and employee had been fractured if not completely broken.

Taking all matters into account the Court finds that the decision to dismiss and the manner in which it was taken cannot but be considered an unfair dismissal within the meaning of the Act.

However the Court also finds that the Complainant contributed significantly to this outcome through his unreasonable and indefensible behaviour towards his colleagues and towards management.

Taking all matters into account the Court finds that the Complainant was 70% responsible for his dismissal and the Respondent 30%.

Remedy

The Court notes that the bond of trust between the Complainant and the Respondent is so fractured that it would be futile to restore the Complainant to his previous position or to employment with the Respondent.

However the Court also finds that the dismissal had had a severe financial impact on the Complainant who the Court accepts has tried with no success to find work in his chosen field of expertise. The Court finds that the Complainant deserves to be compensated for this adverse impact caused by his dismissal.

The Court notes that the Complainant was earning roughly €58,000 per annum. The Court can award two years loss of pay under the Act. However as the Complainant was 70% responsible for his own dismissal the Court abates that figure by 70% and awards the Complainant compensation in the sum of €35,000 in full and final settlement of this complaint.

Determination

The Court finds that the complaint is well founded; that the dismissal was unfair; that the Complainant was 70% responsible for the dismissal and orders the respondent to pay the Complainant compensation in the sum of €35,000 in full and final settlement of this complaint.

The decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
5 January 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.