Complainant

Respondent

Anonymised Parties

An Administrator

A National Testing Service

Representatives

None

Paul Twomey BL, instructed by Kate McMahon & Associates Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00010848-001

16/04/2017

The respondent dismissed the complainant on the 12th October 2016 arising from an incident of the 26th June 2016 where it was alleged the complainant told a customer to “f*** off”. The complainant denied using bad language and asserts that the dismissal was unfair. The respondent asserts that it had reasonable grounds to conclude that the complainant used bad language and that the dismissal was proportionate.

The respondent submitted that the conduct of the complainant on the 26th June 2016 was in breach of his contract of employment and in contravention of the Employee Handbook. The dismissal was based on the finding that the complainant used offensive language to a member of the public, which was not conduct any reasonable employer would allow.

In reply to a preliminary objection raised by the complainant, the respondent outlined that his letters requesting CCTV footage were sent on the 10th and 11th October and it made the decision to dismiss on the 12th October. The disciplinary manager said that the CCTV does not record audio so there was no point in seeing it.

The HR Manager outlined that she was responsible for policies and procedures in the respondent, and assisted the disciplinary manager with the disciplinary process. The complainant’s employment started in 2008 and he was employed as a test centre administrator. This involved booking vehicles into the test centre. He was initially employed by a predecessor and transferred over to the respondent. The contract provides for a disciplinary procedure, whereby the employee is informed of the complaint and provided with documentation. There follows an investigation and if it should go forward to a disciplinary process, the file is given to an independent disciplinary manager. The respondent also has an employee handbook. The document provides for Stage 4 dismissal, which includes dismissal for gross misconduct. The complainant used inappropriate language to a customer, and this is serious misconduct. The respondent also provides a Performance Agreement with sets out duties. This was signed on the 20th January 2016. This required the complainant to act professionally and to achieve the highest standards of customer service, including with difficult customers. This is important as the complainant’s role was with customers. Customer complaints are logged on the system and referred to a manager for review, who can decide whether they merit investigation.

On receipt of the complaint on the 15th July 2016, the customer service department tried to contact the customer and only managed to reach him on the 5th August 2016. There were three statements before the investigation; those of the colleague, the test centre manager and the inspector. The investigation manager was appointed to lead the investigation. The complainant submitted his statement of the event. He said he advised the customer to go to the waiting area and speak with the inspector. The customer was shouting and using offensive language at the complainant. He sought to raise this with the team leader, but could not find him. He sought to send the customer to the right desk to make his complaint. She commented that the complainant had received customer service training.

In cross-examination, it was put to the HR Manager that the complainant never received customer service training and she was asked when this training was provided; she replied that all employees received training at the commencement of their employment. The complainant would have received training. The HR Manager was asked which document showed the complainant had received training. It was put to the HR Manager that the respondent complaints policy provides that complaints should be made within two weeks; she replied that the respondent accepted later complaints. She stated that CCTV footage was held for a period.

The investigation manager outlined that he was notified to carry out the investigation. He met the complainant on the 16th September 2016. His understanding was that all statements were sent to the complainant, but maybe the handwritten note of the inspector was not sent to him. The investigation manager’s role was to investigate the complaint and the statements and to find out what happened on the day in question. The complainant told him that each word from his colleague was not true. After the meeting, the investigation manager did up his report and sent this to HR. On the 30th September 2016, he wrote to the complainant with the conclusions of the investigation and that he had sent the file to the disciplinary manager. The investigation manager acknowledged that the customer’s statement makes no reference to the “f***” word.

It was put to the investigation manager that he made no findings; he replied that he passed on the file to the disciplinary manager. It was put to the investigation manager that there was no reference in his letter to sanctions and to a time limit for keeping CCTV. The inspector and the customer make no reference to the complainant saying “f*** off” and there was no conclusion to his report; he replied that the colleague’s report mentions “f*** off” and this is why he put this to the complainant. He also replied that the complainant had not asked for CCTV and the respondent kept CCTV footage for 14 days. It was put to the investigation manager that the CCTV footage was important as the complainant was not in reception at the time the incident was said to have occurred, he had gone to find the team leader; the investigation manager replied by asking why the complainant had not asked these questions at the disciplinary meeting. The complainant in turn replied that it was then too late to obtain CCTV and he did not know that he was going to be fired, he also had no chance to interview the customer. It was put to the investigation manager that the complainant was only able to read the code of practice after the meeting.

The disciplinary manager outlined that this case was sent to him as part of the disciplinary process and for him to decide if sanctions were warranted. He received the customer’s complaint, the minutes of the investigation meeting, the note of the test centre manager’s phone call, the colleague’s note and the inspector’s statement. Anyone under investigation for bad customer behaviour would be aware of the gravity of the situation. He told the complainant at the start of the disciplinary meeting that this could lead to his dismissal. He found that there was no collusion between the customer and the colleague. There were two things that could have happened – one staff member was trying to tarnish another or the incident happened as described. He could not see any basis for collusion between the customer and the colleague. There was no request for CCTV and he was not aware that this centre has CCTV. After receiving the complainant’s letters of the 10th and 11th October (which he received after the date of dismissal on 12th October), he looked at getting CCTV, but it was then too late. It may have helped but there would not have been sound.

The disciplinary manager said he noted that the original complaint did not include a reference to bad language. He rang the customer on the 11th October 2016. He asked the customer “are you 100% sure” that the complainant used bad language at him and the customer said he was. The disciplinary manager took a break in the disciplinary meeting as the complainant made “peculiar” comments, which were not minuted. They were about the colleague who had given her statement. The disciplinary manager decided to suspend the complainant because of his comments and his ability to work with this colleague.

The disciplinary manager outlined that the respondent was contracted by a state body to provide a service. The respondent was not the same as a DIY retailer as every motorist had to avail of the respondent’s service. Customers must use the respondent and for this reason, their customer service was of upmost importance, the best they could get. The disciplinary manager did not speak with the colleague and she was required to give a statement when the customer complaint was received.

The disciplinary manager said that he stood over the decision to dismiss and it was a proportionate response. The complainant was very experienced and had experience of dealing with difficult customers. The respondent had changed his shifts because of personal difficulties. There had also been in-house issues, but he was dealing with this one specific case. He found no evidence of collusion. The respondent paid the complainant four weeks’ notice.

The disciplinary manager said that the complainant’s submission of the 11th October did not change his decision. In respect of the issues raised in the submission about the test centre, the disciplinary manager contacted the test centre manager, who said that there had been difficulties. This led to an internal re-organisation. He said that the issue here was between the complainant and the customer and not between the complainant and the colleague.

In cross-examination, the disciplinary manager said that he did not receive other complaints about the complainant. It was put to the disciplinary manager that there were no other complaints about him, including the time when they had to call the police; he replied that even if there were no other complaints against him, this did not change the situation with this complaint. They could have been in a different place if the complainant had said “I had a meltdown”. It was put to the disciplinary manager that he did not know that there was CCTV in the test centre, even though this is prominent; he replied that there are many centres and not every centre has CCTV. Some also only had a live feed. It was put to the disciplinary manager that the customer had not said the complainant was aggressive, so this made CCTV so important, and that there was no signature to the complaint and he did not believe the disciplinary manager rang the customer; he replied that there was a record of the complaint and he “100%” rang the customer. They could get the customer here. The disciplinary manager stated that an excerpt of the minutes refers to the phone call made by test centre manager to the customer and not his own later phone call to the customer. There was corroboration between the statements of the customer and the colleague about where the complainant was.

The disciplinary manager outlined that the customer had made a complaint and he was concerned that a staff member used bad language. He asked the customer why his complaint had not referred to bad language, who replied that he did not like to use bad language. The disciplinary manager said that the complainant never asked to cross-examine the customer. It was put to the disciplinary manager that the complainant asked for this on the 10th October; he replied that he did not have the complainant’s letter until after he had made his decision on the 12th October. The disciplinary manager stated that the complaint became a “big thing” when they spoke to the staff involved. The colleague said that bad language was used and he was not happy so contacted the customer. This means it happened or they colluded. He rang the customer to see if it happened. The disciplinary manager acknowledged that there were difficulties between the complainant and the colleague. He was disappointed that the colleague had not raised the issue of bad language straight away. He inquired whether the colleague had made it up. It was put to the disciplinary manager that swearing to a customer does not fall under gross misconduct; he replied that the list provided was not an exhaustive list and does not cover every possible event. He said that being aggressive to customers falls within category.

The respondent submitted that in relation to the case of Lyons v Longford Westmeath ETB [2018] 29 E.L.R. 35, the complainant had not sought to cross-examine the customer. The respondent relied on corroboration of the test centre manager and the disciplinary manager about what the customer said. It stood to reason that a job with a customer service focus required action in an incident involving swearing at a customer. It was an aggravating factor that the complainant continued to deny using the language. The questions arising in this adjudication was whether the employer was entitled to find that the words were used and whether the sanction was proportionate.

The complainant outlined that what was missing from the respondent’s statement was his own statement and the inspector’s statement. His letter seeking access to CCTV and his appeal were missing. There were different employee handbooks and the one supplied to him had 20 pages. CCTV was important as it would show who was aggressive. The complainant outlined that the investigation did not comply with the code of practice. In respect of mitigation, he found other work on 13th February 2017 but this is part-time casual work. At the time of the adjudication, he was on Jobseekers Benefit. He could not find work. He attended an interview two weeks ago and was trying to find work.

In cross–examination, it was put to the complainant that he was on €1,096.16 per fortnight; he replied that his salary was €28,500 per year. His new job is in cleaning and he earned €100 per week. It was put to the complainant that he now says he did not use bad language nor was he aggressive; he agreed with this. It was put to the complainant that he apologised for three things at the meetings; he replied that the colleague should have sent the customer to speak to the inspector about the brake issue. It was put to the complainant that he had said at the investigation that he was wrong to intervene when the colleague was speaking with the customer; he replied that his role was to train in new staff members. It was put to the complainant that he dealt with this situation badly; he did not accept this as the colleague did not follow procedure. He worked at this centre for seven years and worked well with people at six or seven test centres. He reported the issues with the colleague to his line manager and they knew that she should not have been doing the job. It was put to the complainant that in his letter of the 11th October 2016, he stated that he did not like working with the colleague; he replied that he did not know what he wrote. It was put to the complainant that the test centre manager spoke with the customer who confirmed that bad language was used and this was later confirmed by the disciplinary manager. It was put to the complainant that the colleague said the same thing but the complainant was saying he did not use these words. It was put to the complainant that he was saying they were all telling lies. The complainant replied that there was no statement from the customer regarding the use of bad language. He was not saying they were lying. As there no customer statement to this effect, there was no case.

It was put to the complainant that the only evidence of him not using bad language was his denial and it was reasonable for the company to conclude as it did with the corroboration; he replied that he was told to “f*** off” and went to a team leader. He saw that the vehicle was finished and asked the customer to see the mechanic. There was no CCTV footage provided and the respondent delayed in dealing with the complaint. Asked whether he accepted that using bad language was a serious offence, he said that there was no bad language. There were other examples where employees used bad language but were not fired. People were always happy to work with him. There was no evidence of him being provided with customer training. The performance agreement referred to by the respondent was about all elements of the role and not just customer focus. Customer service was 5% of the test centre administrator role. He never had an issue with clients. Bad language was often used by customers when their cars failed, including this customer. In this case, the colleague should not have given the customer an appeal form. He was comfortable in the job and had the support of his team leader and colleagues.

The complainant’s employment commenced on the 21st January 2008 and he was dismissed on the 12th October 2016. The grounds of dismissal were the complainant’s “unacceptable, unprofessional and inappropriate behaviour to the said customer on the 26th June 2016. It is clear from the evidence submitted that foul language was used on the day and your behaviour was aggressive and threatening.” The respondent relied on the serious or gross misconduct part of the disciplinary procedure. The appeal upheld the dismissal decision. In the letter of the 16th November 2016, the appeal manager states that he spoke with the colleague and also interviewed the test centre manager and the disciplinary manager. The appeal manager upheld the dismissal decision on the grounds set out above.

The complainant denies he told the customer to “f*** off”. There can be little doubt that using bad language at a customer is grounds for a gross misconduct dismissal in the context of a customer service role where customers are complying with a statutory obligation in submitting their vehicles to verify they are roadworthy.

The question before this adjudication is whether the respondent had reasonable grounds to conclude that the complainant used the bad language to the customer; it is not the role of this adjudication to conclude whether the bad language was used.

In assessing whether the respondent had reasonable grounds, I note the following factors. I note the delay in the matter proceeding to investigation and to the disciplinary process. I note that the incident arose on the 26th June 2016 and the customer complaint was only made on the 15th July 2016. The complainant referred to respondent documentation that customer complaints should be made within two weeks of incident. Given the issues disclosed in the original complaint (even without a reference to bad language), the respondent was entirely reasonable in investigating the customer complaint.

The complainant places great emphasis on the absence of CCTV footage. Even though there is no audio on the CCTV, he outlines that it would show who the aggressor was. The complainant outlines that he had long running difficulties with the colleague and criticised her contribution at work. The incident of the 26th June 2016 was a significant event in their poor working relationship. He spoke over her while she was dealing with a customer. Given the significance of the incident, it is noteworthy that the complainant did not immediately ask for the CCTV footage as soon as the incident was referred to investigation. The request was only made once the disciplinary process commenced and the complainant placed on paid suspension. It is also not clear what the CCTV footage would add, when all the evidence suggests that the complainant and the customer were, at least, argumentative in their interaction.

It is striking that the customer complaint of the 15th July 2016 refers to the complainant’s rude behaviour and his sarcasm, but makes no reference to being told to “f*** off”. This allegation is disclosed in the colleague’s statement, where she says “The customer was walking away from [the complainant] towards the waiting area and [the complainant] standing with the door open to the lane when he told the customer to f*** off, again I told the customer to ignore [the complainant] and not pay him any attention.” It is striking that while the disciplinary manager contacted the customer, he did not interview the colleague to assess her evidence. This was a step taken by the appeal manager, who was satisfied that she gave a true account of the incident. The complainant was not offered the right to cross-examine the colleague. The question is whether the dismissal is procedurally unfair because the disciplinary manager did not interview the colleague, nor offer the cross-examination of the colleague. For completeness, there is no reality to cross-examining the customer, a member of the public.

Having considered the evidence and submissions of the parties, I am satisfied that the disciplinary manager was impartial and open in his approach to the disciplinary process. While he did not interview the colleague, he asked himself the question whether her statement might not be true. This was appropriate given the interpersonal difficulties between the colleague and the complainant. The disciplinary manager took active steps to verify the contents of the colleague’s statement by phoning the customer. He did this despite already having the test centre manager’s confirmation of the customer’s account. He examined whether there was collusion between the customer and the colleague and concluded that there was no basis for this. Given the thoroughness of this process, I conclude that the respondent had reasonable basis to find that bad language was used by the complainant on the 26th June 2016. The facts that the disciplinary manager did not interview the colleague, nor offer the complainant the right to cross-examine do not undermine this conclusion.

For the reasons set out above, I am satisfied that respondent has rebutted the presumption in section 6(1) of the Unfair Dismissals Act that the dismissal was unfair. The complaint is, therefore, not well founded.

CA-00010848-001

For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.

Unfair Dismissals Act

Gross misconduct