Complainant

Respondent

Anonymised Parties

A Call Centre Agent

A Call Centre Company

Representatives

Gerard Meehan, B.L (Day 1) Michael O Doherty, B.L(Day 2 and 3) instructed by Niall Colgan & Co. Solicitors

Claire Bruton B.L instructed by Ronan Daly Jermyn 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-00011251-001

11/05/2017

This case came to hearing on foot of an application made by the Respondent to seek to adjourn proceedings considering parallel proceedings before the Circuit Court. On October 20, 2017, I heard both parties on this request and considered extensive arguments made by both parties. I issued a preliminary decision on 28 December, 2017, incorporated here for completeness. The Substantive hearing in the case took place over two days on March 6 and 7, 2018, where both parties were legally represented by Counsel and Solicitors. The Respondent made extensive oral and written submissions. The Complainant relied on oral submissions and supplementary written submissions on case law. Details of loss and mitigation were sought by me.

Preliminary Decision:

At the commencement of hearing on October 20 ,2017 in the case of a Call Centre Agent and a Call Centre Company, the Respondent made a Preliminary Observation on the co-existence of a claim for Unfair Dismissal lodged before the Workplace Relations Commission and a claim for Personal Injuries submitted to the Circuit Court.

The Respondent sought an adjournment of the case before the WRC in favour of the Circuit Court proceedings, citing that the same set of facts grounded both claims and the facts were “intimately linked”.

Counsel for the Respondent submitted that there was a considerable overlap in the Complaint form before the WRC dated 11 May ,2017 and the Plenary Summons submitted to the Circuit Court dated 7 July 2017. Counsel also argued that both the claim before the WRC and the Personal Injuries Summons were mirror images of each other and both sought to challenge the components of the Dismissal effected on February 9,2017. This is prohibited by Section 15 of the Unfair Dismissals Acts 1977-2015.

The Respondent opened case law in support of the arguments advanced:

Carrie V EAT ex tempore. Sheehan J. in the High Court, where the decision of the EAT to adjourn proceedings was upheld by the High Court in a judicial review on the basis that both cases were “intimately linked “.

Morgan V Irish Horse Welfare Trust [2014] 25 ELR 41.

The Respondent sought the application of Morgan to the current case, where Bullying and Harassment proceedings and unfair dismissal proceedings were found to be “inextricably linked”, with bullying being at the centre of both actions. The claim for unfair dismissal was adjourned by the Tribunal.

On the day of hearing, Counsel for the Complainant submitted that the case should proceed as the objection raised first by way of written submission on October 19, 2017 and by oral submission on the day of hearing was too late and should have been raised earlier.

The proceedings before the Circuit Court may take a multiple of years to address and the complainant, on reduced means had instructed a full legal team. He sought that the Adjudicator exercise her discretion not to adjourn the hearing and to press on with the case. He submitted that there was a clear line of demarcation between the two cases before the WRC and the Circuit Court.

Counsel for the Respondent disputed the reference to demarcation and insisted that the cases were inextricably linked.

In response to the Adjudicators Inquiries on whether there were exceptional circumstances to be taken account of in the case? the Complainants Representative submitted that the complainant had suffered health problems, which the circumstances of the case had contributed to. He had a severe need to recover in the case.

The Respondents Representative stated that the Complainant had not submitted a Medical Report and no evidence of the complainant being unfit for work had been advanced. The Complainants representative had submitted that the complainant had applied for 125 jobs. The Company had not been approached for a Reference from potential employers.

I afforded the Complainant an opportunity to submit a written submission in response to the Preliminary Issue advanced by the Respondent. I wrote to both parties to that end on October 23, 2017. On November 10, 2017, I received an outline submission from the Complainants representatives accompanied by two Medical reports. These were copied to the Respondent, who submitted closing comments on 24 November 2017.I have carefully considered all submissions both written and oral in relation to this request for adjournment of proceedings and I wish to outline my deliberations in this regard.

The Complainant opposed the Respondent application for adjournment on four broad grounds. The Complainants Representative submitted that:

1 The application for adjournment came too late in the process. The Respondent had been afforded an opportunity to provide a written statement to the WRC within 21 days of notification of the claim, but did not avail of this opportunity. The Complainant commenced Circuit Court proceedings against the Plaintiff on July 7,2017, in respect of Personal Injuries only. This course of action did not seek to recover damages for loss of earnings.

It is incumbent on a party making a preliminary objection to do so at a preliminary stage of proceedings. The respondent did not avail of this and the late notification of the objection had disadvantaged the complainant and while accepting, that there may not have been a mechanism for the Respondent to make an actual application before October 20, 2017, the Respondent should have indicated its intention to do so.

2 The Personal Injuries Summons seeks to recover special and general damages for Personal Injuries only. The medical and related expenses are issues in relation to which the Adjudicator has no jurisdiction. The claim before the WRC is a loss of earnings claim.

The Complainant relied on Morgan V Irish Horse Welfare Trust [2014] 25 ELR 41 and submitted that it was distinguished from the instant case given that the Claimant had instituted High Court proceedings for Personal Injuries ,loss and damage but also included a claim for compensation for 2 years   loss of earnings .In the current case , the complainant had drawn a clear division between his Circuit Court Case ,where he seeks to recover in respect of personal injury and his WRC case ,where he seeks to recover loss of earnings .

If the case can proceed, the complainant will acknowledge at the Circuit Court that he shall not be entitled to recover at common law for wrongful dismissal in respect of the dismissal.

3. Section 15 of the Unfair Dismissal Act 1977-2015 does not require the Adjudicator to adjourn the hearing. S.15(2) sets out that once the hearing of the claim had commenced by the Adjudicator, then the complainant does not have a claim at common law for wrongful dismissal. The Complainant accepts that the Adjudicator may adjourn the WRC proceedings until after the Circuit Court, but she is not compelled to do so.

4 Counsel for the Complainant submitted that the financial hardship already imposed on the complainant should be considered. He has been unemployed since the date of dismissal and did not receive 9 weeks of social welfare benefit His payments of €193 per week had ceased on 4 October, 2017 and he is relying on his savings. After 150 job applications, he remains without work.

The Complainants Psychiatrist has identified financial stressors as having been a factor in exacerbation of the complainant’s psychological condition. Irrespective of the causes of his severe clinical depressive illness, the medical evidence endorses that an early settlement in the legal proceedings would aid his recovery.

In an extensive reply document dated November 24,2017, the Respondent denied that any delay in making an application for an adjournment occurred. The parties had participated in Mediation under the auspices of the WRC which concluded without resolution in August 2017.

1.The Respondent was a late recipient of the Complainants Circuit Court Personal Injury summons and given the numerous similarities to the within proceedings, they held a genuine belief that he complainant had elected to prefer to pursue the matter under those proceedings. The Respondent was justified in submitting the requested written statement after the Mediation had concluded. There was no breach of WRC procedural rules as these rules are not absolute.

The Respondent has also sustained legal costs associated with the first day of hearing. The Respondent contended that the Complainant was not prejudiced in the circumstances where the adjournment application was made on the first day of hearing as the very first available opportunity and it could not have been made earlier.

The Complainant had pleaded unfair dismissal in both sets of proceedings and the Respondent has sought the adjournment to protect its position and to ensure that its position is not prejudiced in the Circuit Court proceedings because of the hearing arising from the same circumstances and facts.

The Respondent has anticipated that they will be significantly prejudiced if the application for adjournment is refused because of having to deal with the same claim twice, in particular because of Section 15 of the Act. This outweighs any prejudice to the complainant.

2 The Respondent recognised that Personal Injuries proceedings seek damages for personal injuries and the Claim for alleged Unfair Dismissal seeks compensation, this is not sufficient for it to be safe to proceed in the statutory claim for Unfair Dismissal due to:

(1)  The facts and circumstances alleged in both sets of proceedings are precisely the same.

(2)  The WRC Complaint form contained 6 complete overlap in facts surrounding the written warning, final written warning, investigation, disciplinary procedure, dismissal and appeal.

Section 15 of the Act clearly permits any challenge to the termination of employment to take place in one set of proceedings. In Parsons v Iarnrod Eireann [1997]2 IR 523, The High Court heard that the claimant had been dismissed from his employment and brought a claim under the Statutory legislation for Unfair Dismissal. Subsequently, he issued proceedings in the High Court seeking several reliefs and damages for “wrongful and/or unfair dismissal”. Barrington J in the Supreme Court outlined that Section 15 sets the requirement to elect between a claim for wrongful and Unfair Dismissal as mutually exclusive causes of action.

In referring again to Morgan, the Respondent submitted that it would be unsafe to proceed with the statutory claim in advance of the personal injuries claim. In Morgan, the basis for adjournment was based on the interlinked nature of the claims and an attempt at an artificial distinction by the employee

The Respondent contended that there was no demarcation between the two sets of proceedings. There was “no clear break” between proceedings as existed in a parallel claim   for defamation and Unfair Dismissal in O Doherty V Independent Newspapers [2015] 26 ELR 6. The Respondent contends that the WRC will be asked to adjudicate on the same set of facts as the Circuit Court, as the facts on the Plenary Summons are not independent of Dismissal. The Complainant has sought to create an artificial distinction between the Circuit Court Proceedings and the Unfair Dismissal proceedings, which is impossible.

The Respondent did not accept the facts of Medical diagnosis outlined in the Medical reports.

The duplication of proceedings justified an adjournment of the Unfair Dismissal claim pending the Outcome of the Circuit Court proceedings. the WRC must have regard for the superior jurisdiction of the Circuit Court and not make findings on the same issues which the Court must adjudicate on.

3.The Respondent accepted that the Adjudicator has discretion to adjourn the proceedings but sought application of Morgan.

4 The Complainant has not been prevented from seeking alternative work on health grounds. The Medical Reports submitted have not been probed by the Respondent and are disputed. It is commonly the case that a litigant’s health will improve post proceedings settling. This does not constitute exceptional circumstances. AN adjournment will not delay the complainant as he was always going to have participate at Circuit Court level.

The Respondent is aware that the Court identified by the parties is considered one of the faster circuits for cases to come on hearing and the Court Office has indicated that it may take approximately four to six months for cases to come on from services of the Notice of Trial.

Request for Adjournment of case before the Workplace Relations Commission:

I have considered the application for adjournment as proposed by the Respondent and the response elicited by the Complainant.

I have found it necessary to outline the sequence of events which led to the request for adjournment.

1 The parties accept that the date of the complainant’s dismissal stands at February 9,2017.

2 The parties accept that the single item claim before the WRC, that of unfair dismissal was lodged on May 11, 2017.

3 The Respondent submitted that Mediation occurred in the case without resolution. This was not disputed by the Complainant.

4 The parties accept that the claim for Personal Injuries before the Circuit Court was submitted on July 7, 2017.

For the purposes of my response, I have found that the claim for Unfair Dismissal came first in time, the personal injuries claim followed some two months later.

The issue of parallel proceedings in Employment law is not a new issue and it has been a consideration in the authority of Henderson V Henderson [1843]3 HARE 100 which formulated a Public Policy rule where parties to litigation may not litigate issues that should have been addressed in earlier proceedings thus striving for finality in litigation. This rule was incorporated by Hedigan J in Cunningham V Intel Ireland ltd [2013] IEHC 207:

All matters and issues arising from the same set of facts or circumstances must be litigated in one set of proceedings save for special circumstances.

Section 15(2)(3) of the Unfair Dismissals Act 1977-2015 precludes a double recovery of relief for Wrongful Dismissal and Unfair Dismissal. The Respondent has submitted that there are no lines of demarcation in the claims before the WRC and the Circuit Court. She also submitted that the plenary summons was served after the employment ended.

Alternative remedies of employee in Section 15 the Unfair Dismissals Act 1977-2015.

15

15.— (1) Nothing in this Act, apart from this section, shall prejudice the right of a person to recover damages at common law for wrongful dismissal.

(2) Where a decision has been made by an adjudication officer in respect of a claim by an employee for redress under this Act the employee shall not be entitled to recover damages at common law for wrongful dismissal in respect of the dismissal concerned.

(3) Where the hearing by a court of proceedings for damages at common law for wrongful dismissal of an employee has commenced, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.

In Stephens V Archaeological Development Services ltd 2010 IEHC 540, Mc Menamin J, in the High Court placed a stay on Personal Injuries proceedings pending the outcome of the Unfair Dismissal claim in respect of Financial loss. The statement of claim omitted a claim for wrongful dismissal.

In the instant case, Counsel for the Respondent has emphasised that the “Wrong alleged against the Defendants” in the Personal Injury summons reflects the wording of a Wrongful Dismissal.

“Negligence, Breach of Duty and Statutory Duty, Breach of Contract”.

She submitted that this in turn has blurred the boundaries on the lines of demarcation between the claims causing them to arrive at an inextricable linkage. I have not heard any evidence in this case and I would be very reluctant to jump to any conclusions on the integrity of the claims initiated by the Complainant at this juncture. There is no prohibition to initiating both sets of proceedings. This application concerns which of the claims should take priority for the purposes of a hearing?

The Respondent has expressed a preference for the Circuit Court proceedings and the Complainant for the present proceedings at WRC level. I note that S.15(3) of the Unfair Dismissals Act issues a clear road map for proceedings under Wrongful Dismissal, once commenced, there is clearly no recovery under the Unfair Dismissals Act.

I have taken some guidance from an EAT case of Tony Whyte and Phone Watch Ltd UD 685/2015, which set out 16 points of consideration in deciding that the Employment Appeals Tribunal case should proceed in a case of constructive dismissal lodged some 10 months before a Personal Injuries case in the Circuit Court.

The EAT found that the cause of action for personal injuries had predated the cause of action for Unfair Dismissal, the facts were not inextricably linked to the extent that they could not be dealt with separately by each forum. Separate reliefs were available in each respective forum. In exercising both fora, overlapping or “double recovery “of reliefs would not be permitted and adjustments of the Personal Injury summons may be necessary at a “later stage”.

There is a different focus and test in each forum. In such cases, by dealing with the varied and separate claims properly applicable to both for a, respectively, ensures finality in the law.

“In the interest of justice, the Tribunal recognises that there are special circumstances which allow it as a matter of practicality and expediency to refuse the application for postponement as requested “

I have found considerable overlap in facts in the present case. I take the point made by the Respondent that there is a considerable overlap in the both the origin and facts of both cases before the WRC and the Circuit Court. However, I am not certain that they are at a level where they are intimately linked as I found some difference in the claims and for that reason am reluctant to apply Morgan.

I also have reservations on the applicability of Parsons V Iarnrod Eireann 1997 2IR 523, as the facts in this case are distinguished by the Complainant in that case not having exhausted his claim under the Unfair Dismissals Act before commencing an action for Wrongful Dismissal at the High Court.

I have taken further guidance in the recent Court of Appeal findings in Culkin V Sligo County Council [2017] IECA 104, where Justice Hogan sought to refer to a “modern application “of the rule in Henderson requiring a merit based approach, in terms of multiplicity of litigation. This case concerned an appeal of a High Court decision which ruled that a claim for Personal Injuries should fall in limine as an abuse of process in the face of a decision from the Equality Tribunal.

Hogan J in para 25 of the judgement:

It follows, therefore, that the discrimination claim and the personal injuries claim are different claims, with different time-limits and different rules as to both liability and quantum. As Ryan, has put it, the identification of “the ambit of the two (or more) sets of proceedings pursued by a litigant, and whether that ambit overlaps impermissibly, would appear to be central to the determination of whether Henderson…. precludes the bringing of further claims”: “Parallel Proceedings in Employment Law: An Analysis of the High Court Judgments in Cunningham and Culkin” (2015) 38 Dublin University Law Journal 219, 224. In that sense, therefore, it was simply not possible for the plaintiff to have brought forward his “whole case” before the Tribunal in the sense envisaged by Wigram V.C. in Henderson simply because that statutory body would have had no jurisdiction to entertain a workplace personal injuries claim.

Justice Hogan placed a caveat in the decision of the Court that the Personal Injury claim could proceed by stating:

It would also be open to the Court of Trial to determine that that the Personal Injury claim or at least part of the claim should fail because it amounted to a collateral attack on the decision of the Equality Tribunal.

I have taken account of all submissions and case law relied on by the parties. I note the Respondents reliance in the absence of” the clear break” remarked on in O Doherty V Independent Newspapers UD 235/2013, where the EAT held that it would be unfair to employees to deprive them of the right to a speedy hearing just because they had other claims against the employer. I cannot determine whether a clear break existed or not at this juncture.

I am of the view that this case should proceed as first planned on October 20, 2017. In making this decision I give the following reasons.

1 The cause of action for personal injuries appears to have predated the cause of action for Unfair Dismissal. I understand that the Respondent is aggrieved by the Multiplicity of actions while involved in Mediation at the WRC.

2 There is scope for both the WRC to deal with the claim for alleged Unfair Dismissal relying on our limited jurisdiction under the Unfair Dismissals Acts and for the Circuit Court to address the separate claim for Personal Injuries. I have not established that the claims were inextricably linked. I found them to be different claims arising from the same set of facts.

3 The case before the WRC is ready to proceed and I believe that this is in the best interest of the parties. It is arguable that by the prior participation of the parties in the WRC mediation process, that both parties have commenced the first step in the process and the Adjudication Service is the second step in the process. I do not accept that the application for Adjournment was late.

4 Adjustments to the Personal Injuries case may be necessary at a later stage (Stephens and Culkin) I believe that the caveat contained in the last sentence of Culkin may be instructive in this case in terms of any apprehension expressed by the Respondent on parallel proceedings.

5 The claim before the WRC concerns the financial loss resulting specifically from the dismissal.

6 The treatment of loss of earnings differs in each forum and there is a distinction in the burden of proof in both fora.

For these reasons, I have chosen to refuse the request for adjournment and I have requested that the Post Registration Unit re-list the case for a 2-day hearing at the earliest date possible. I would be grateful if the parties could submit any further documents in advance of the next day of hearing.              

December 28, 2017.

The Respondent runs a large call centre and is part of a worldwide group of companies which specialise in Hospitality services. The Complainant was employed on a full-time basis in the Italian inbound /flex team and reported to a team leader. The Respondent provided extensive training from a 4 week at the commencement of employment through to ongoing coaching and training.

The Respondent had cause to initiate several cautions and coaching discussions to the complainant during his employment. He also received a verbal warning in 2013. The Respondent issued a written warning on 10 December 2015 in respect of call management. This was followed by a final written warning in May 2016(12 months) in respect of an interpersonal conflict with a work colleague. This warning was live as the circumstances of the events which led to the complainant’s dismissal on 9 February, 2017 evolved. Counsel for the Respondent submitted that the complainant had a chequered past where repeated behaviour was a cause for concern.

On December 7, 2016, the complainants Team Leader identified two problematic phone calls on a randomised selection in the internal measurement system. The complainant was coached and the matter was referred to the operations manager and an investigation commenced. During the investigation, further issues came to the Investigators attention.

1 .13 calls were dropped /unanswered 21 November 2016- 9 December 2016.

2 A complaint was received by a customer.

The Complainant attended on five occasions during the investigation, and his submissions were heard. The Investigation report was first produced in draft then finalised. All three allegations were upheld and a recommendation made to activate the company Disciplinary procedure.

A Disciplinary hearing was held on 7 February, 2017. The Complainant raised issues on the integrity of the translation relating to the first allegation. Four separate translations followed.

The Complainant refused to take a seat and engage during the disciplinary procedure and the meeting was adjourned and subsequently resumed. The Respondent made the decision to terminate his employment on 9 February ,2017 and made a payment in lieu of notice.

The Complainant lodged an appeal on 14 February with the support of his Solicitor. He had not sought a Legal Representative prior to this.

The Appeal was held on 27 February ,2017 by the Senior operations Manager, who having considered the matter in full, found no basis to reverse the decision taken to terminate employment.

The Complainant was dismissed due to gross misconduct.

Counsel for the Respondent submitted that the complainant had used abusive language to a customer. This followed many coaching and training sessions together with warnings. An Investigation occurred on 12 December and the Disciplinary Hearing took place where the complainant was heard and afforded fair procedures.

The Respondent justified the Dismissal because of extremely serious conduct, where the Respondent had no option but to dismiss.

The Respondent relied on the test for reasonableness cited in Hennessy v Read and Write Shop ltd UD 192/1978

The nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant

And

The Conclusion arrived at by the respondent that, based on information resulting from such enquiry, the claimant should be dismissed.

The Respondent pointed to the deliberations Of Linnane J in the Circuit Court in Allied Irish Banks Plc. V Purcell {2012}23ELR, on whether it was reasonably open for the employer to make the decision it made, rather than the Adjudicator substitute her views for that of the employer.? The Respondent referenced the Supreme Court in Mooney v A Post [1998]4IR 288, where the company procedures and employee’s contracts are to be followed with “due respect to the principles of natural and constitutional justice”.

Counsel for the Respondent submitted that the complainant had not requested legal representation prior to appeal.

The Respondent sought that the claim be dismissed.

Evidence of Ms A, Operations Manager.

Ms A had worked at the company for 19 years and had previously worked at the complainant’s role level. She gave an outline of the business and training schedules. She submitted that 5 calls were automatically recorded per day for audit purposes. The Company had strategies in place to deal with challenging callers. There was provision for call agents to take a break. She was not aware that the complainant was stressed.

On 9 December, 2016, the complainants team leader approached her. He was concerned at the complainants behaviour and tone on two phone calls, where he had allegedly been rude to an Italian member. A coaching session followed and Ms A announced an investigation on 12 December. The Complainant raised separate issues at this discussion where he recorded his dissatisfaction that a new employee had secured the “new coach hire “position. He, himself had not been permitted to apply due to the limitations placed on him through disciplinary sanction.

During the investigation, other issues arose. On the 13 December, the 13 dropped calls emerged as a cause for concern and on the 14 December, a written complaint from a customer followed. The first opportunity to meet the complainant arose on January 9, 2017. Documentation, incorporating company policies was shared and he was given 48 hours to review. He did not request legal representation.

Ms A recalled that the complainants demeanour at that meeting was that of anger, he did not hold eye contact and he referred to her in a derogatory manner in the third person as if she was not in the room. He reverted to a previous issue which had been a topic of discussion but did not address the complaints. He apologised for his behaviour. She recalled that he furnished his response to the complaints the following day. He did not raise issues regarding the investigation. Ms A offered the complainant time way from phones to prepare his responses.

The Complainant had raised an issue on the three translations of the first allegation on inappropriate language and requested an independent translation. This was secured from an Italian Team leader in another company on January 31.

The Complainant had suggested that “call dropping “was in fact widespread within the Italian team and an audit completed by December 31 confirmed otherwise.

Ms A summarised the findings of the investigation as :

1 The Complainant had used inappropriate language on a call. He had not tried to calm a customer and the issue was not resolved.

2 The Complainant had dropped calls. He had not reported phone issues. His Team Leader had flagged this with him previously.

3 A customer had not sought a full confirmation and complained. There were no notes maintained by the complainant as proof.

During cross examination,

Ms A confirmed that this investigation was her second investigation as she had been involved in the earlier Interpersonal Conflict issue which led to the final written warning in May 2016. She had not received specific training in investigations but had accumulated experience. She confirmed that the company did not have a specific policy governing interpersonal conflict. She confirmed that an operational issue had arisen as a parallel issue during the investigation on the complainants “hoodie” and this took a different path.

She confirmed that the investigation was in being for 1 day before the subsidiary issues of dropped calls and an episode of customer dissatisfaction were added to the issue of the alleged impolite language on 2 calls. Ms A confirmed that she was happy with all four translations secured of the first call as the “words of protest “were consistently captured and recorded.

In relation to the Investigation, she confirmed that the Team Leader Statements were placed in the IT communication system and both Ms A and Ms B (Hr Manager) decided on who else was interviewed. When challenge that nobody else had apparently heard” the words of protest “attributed to the complainant, she recalled that the customer had heard them. Other staff had been interviewed by the Team Leader and he gave his statement on 9 December. The customer was not interviewed for the purposes of the investigation as they didn’t want to put the customer in an awkward situation. There was no evidence that the customer had in fact spoken to a different agent.

The third allegation surrounding the customer complaint arose by way of a survey on December 13. The Complainant had not recorded Agent contact notes on this event and together with the complaint, this satisfied the burden of proof for an unauthorised transaction. Ms A confirmed that customer complaints are very rare in the company. The Code of Conduct provides guidance in these instances.

Ms A clarified that the Role of the Agent is to explain and educate and if necessary intervene to calm down a customer. Team leader support is also available where the call agent can mute the call and secure support.

Ms A Rebuked Counsels question on whether the customer was always right and said that the company did not make generalisations. She went on to say that the customer in the third allegation was experienced in the workings of the company. She listed the number of complaints received from an average of 32,000 calls as 10 complaints.

Counsel for the Respondent in redirecting the witness, Ms A clarified that she had not investigated the “hoodie “issue and this was not comparable to the allegations investigated December-February 2017. She confirmed that the Company IT system was home to all related documentation on disciplinary issues involving the complainant.

Counsel asked Ms A to outline what might follow a customer who swore at an agent. She replied “you cannot use that language, I have the right to terminate the call “

The Complainant had not provided a validated translation from his own viewpoint. The Complainant had not denied that he used an Italian word on the second call under investigation, he just placed a different context on the background to where he had been overheard by the customer.

Ms A confirmed that the complainant had not requested to address the customers at any stage during the investigation.

Evidence of Mr D, Operations Manager (Decision maker on dismissal)

Mr D had worked at the company for 15 years becoming Head of Operations in 2015. He had received extensive training in both the UK and with the company on Disciplinary procedural matters. He was presented with Final report for the purposes of the Disciplinary hearing, which he conducted with Ms E from Human Resources.

The first attempt to hold the meeting on February 7, 2017 was abandoned. The Complainant had been given 24 hrs notice of the hearing, refused to sit down or engage in the process. He focussed on accusations on falsified records. Mr D confirmed that he had conducted over 20 Disciplinary hearings and he understood they served as an opportunity to bring addition reports on a base document such as the report. The Complainant was proficient in conversation in English. He did not request a translator.

The Hearing resumed the next day and this time the complainant was calmer sat down and participated in the process. Mr D sought any additional points of the three allegations which had been upheld. He detected a sense of paranoia from the complainant when he submitted hi theory of calls being “doctored and cut”. He confirmed that Team Leaders were not able to edit or cut calls as the server is in the UK.

The Complainant had nothing to add on the second call and the Italian expletive which had been established on the call. The Complainant did not submit any additional information on the third allegation. Mr D took a break at that point in the process.

He was aware of sanctions short of dismissal such as suspension without pay for a week, which he had used in the past but did not consider on this occasion. He was struck by the seriousness of the three allegations and the complainants resultant lack of ownership or contrition. He did not justify his actions. He would have expected him to demonstrate some insight. He describes the deliberative process as 6 hours’ duration and he felt he had no other option outside dismissal. He did not hear the complainant plead for his job and he did not mount a pitch to sway him in any way. He did not demonstrate an awareness or a willingness to take steps to change.

Mr D in pondering on the preferred remedy sought by the complainant of re-instatement, indicated that he couldn’t agree to this given his lack of awareness, contrition or accountability in relation to the allegations. He submitted that the complainant did not understand the gravity of what had occurred. He confirmed that the complainant was a good sales man but not all calls were sales central.

Mr D concluded by distinguishing the “hoodie “issue from the events surrounding the investigation.

During cross examination,

Mr D re-affirmed that the complainant had sought to justify his comments on the first call and had not taken accountability or apologised. Mr D differentiated an earlier appeal he heard in the complainant’s case and denied a perception of bias.

Mr D confirmed that none of the four translations of the first call were completed by official translators. The Complainant was not unhappy with the quality but with the missing expletive which he attributed as provocative.

In response to Counsels question on whether the complainant could have given a reaction and not have attracted a sanction? Mr D replied he could have volunteered “I understand you are annoyed”

Evidence of Ms E (Senior Director, Appeals Manager)

Ms E was a Senior Director with the company up to October 2017. She submitted that she had no knowledge of the Investigation or Disciplinary hearing. She did recall that the complainant had approached her on three occasions as she operated an open-door policy. She listened to him and directed him back to the normal structures, conscious that any appeal would come to her.

Ms E permitted a Legal Representative for the complainant to attend the appeal. All four people present spoke, the complainant, his solicitor, the human resource representative an Ms E herself.

The Company had a quality monitoring tool with an expectation of weekly adherence. Active Listening is predominant and call termination is too kept in reserve. An Agent should not feel under pressure to resolve the call himself as the Team Leader could complete the call back.

Ms E considered the 8 points of appeal submitted by the complainant. She offered an Independent Translator to address the first call. She took time so as every single point was understood. She distinguished what happened from earlier performance scores recorded by the complainant. She found no basis to overturn the decision to dismiss.

During Cross examination, Ms E confirmed that no one had been disciplined for shouting in relation to the second call under investigation outside the complainant. She confirmed that she held discretion whether to permit a legal representative attend the appeal hearing. She permitted him to speak.

Ms E stated that she had no reason to disbelief the translations of call 1.

Ms E clarified the role demarcation in the management team associated with Disciplinary matters. This was aimed at protecting the integrity of the process and to avoid overlap.

Team Manager: verbal warning

Operations Manager: Verbal and written warnings

Head of Operations: Final Written Warning and Dismissal

There was a Human Resource business overlap.

The grounds of appeal were that the sanction of Dismissal was disproportionate.

1 Translation of call 1 edited. Admission of criticism of the customer but provocation.

2 Admission of dropped calls .2% of calls.

3 Denied breach of Booking procedure

Ms E recalled that the complainant appeared aggressive during the appeal but did not advance an argument on mitigation or plead for his job.

Ms E confirmed to her Counsel that she had been mentioned on the complainant email of January 10 in terms of his response to the findings of the investigation. At that point she had no idea of the process nor had she been appointed to conduct the appeal.

The Respondent made a supplementary submission in summary a week after the hearing. This was copied to the complainant representative.

In summary, the Respondent had not denied the complainant a Legal Representative. This was first requested and agreed to at appeal stage, where the Solicitor for the complainant was permitted to address the hearing. This case is distinguished from Lyons and Longford Westmeath Education and Training Board [2018] 29 ELR 35 in the High Court and Burns and Horrigan v The Governor of Castlerea Prison, MJELR [2009] IESC 33 in the Supreme Court where the exceptional circumstances test was not satisfied.

The Complainant had not contested his actions throughout the investigation and Disciplinary procedures. Counsel argued against the application of Kilsaran Concrete V Vitalie Vet [2016]27 ELR 237 in the Labour Court where the letter dismissing the complainant had supplementary additions not previously put to him during the activation of company procedures. This act rendered that dismissal unfair. In the instant case, the complainant was advised of all three allegations against him from 9 January 2017. The Investigation had not been unduly broadened.

The Complainant had confirmed during the hearing that he departed from his training in reacting the way he did to the calls and his phone set should not have been on speaker.

Counsel for the Respondent concluded by reaffirming the submission that the circumstances of the case were of such severity to warrant Dismissal .The Respondent was opposed to all remedies submitted by the complainant and in particular to the potential if any for re-instatement Sheahan V Continental Administration Company ltd UD/850/1999 .The Respondent also took issue with the complainants periods of unavailability for work due to sick leave and his stated mitigation of loss   in the case of calculation of any award of compensation.

The Complainant was born In Egypt and is an Italian National. He came to work with the Respondent on a full-time basis on 11 February, 2013 and received €1900.00 per month with some incentivised payments. Counsel for the complainant introduced him as “strong, independent and confident, but not a saint “He was good at his job but not meek and retiring.

The Complainant was summarily dismissed from his employment on 9 February 2017. The reasons advanced were Misconduct and Gross Misconduct.

He submitted that the complainant that the nature of the work was proving problematic and he was finding it difficult to deal with lots of people. He had, however amassed many compliments and high levels of satisfaction, he was a brilliant employee.

Counsel submitted that the complainant took issue with the Disciplinary procedures which led to his dismissal. There were no transcripts of witness statements, Dismissal should have been the ultimate sanction, there was a duplication in taking and adjudicating on complaints which cast doubt on the integrity of the process. He submitted that all three processes of Investigation, Disciplinary hearing and Appeal were flawed at every stage.

Four transcripts were made of short calls recorded in the Italian language, these were only made on demand. The Claimant was denied a legal representative and only eventual facilitated as a good will gesture. English was not the complainants first language.

Evidence of the Complainant:

The Complainant is an Egyptian and Italian citizen with extensive experience in the Hotel Industry and have never experienced a Disciplinary procedure. He had secured worked with the Respondent via a Recruitment Agency while he was working in London.

He undertook a four-week training period at the commencement of his employment, which addressed the normal training on the company systems. He had undertaken similar work in the UK did not recall dealing with customers on the phone. Further coaching sessions followed this. He recalled receiving a verbal warning for time keeping issues while he was adapting to his new work location. This had not been incorporated into the initial training schedule and he adjusted his arrival time to log into the time management system in accordance with the requirements.

He settled in well and secured some performance targets, following which he received an award. the Team Leaders had no cause to raise issues with him and he found that they had “nothing to add to my skills”

He recalled some minor difficulties with customers where he learned that a customer may not have wished to speak to a foreigner. An opportunity followed to repeat the call with a guide.

He did not have regular coaching and was counselled once for lateness.

The Complainant submitted that internal changes followed at the company following annualised redundancy programmes where the workforce seemed to decrease by 50%. The work is being open plan and he got on well with the staff but did not count them as friends.

The Complainant recalled the circumstances of the application of his final written warning in May 2016.He recalled that discussions were normal but the tone was higher. He was surprised by his Team Leaders management of the issue.

The Complainant submitted that his contract changed in October 2016, Customer care dept. closed and he took on the work of other employees. He did take some training in customer care. He felt pressurised trying to manage the phone. The Complainant consideration the notification of the investigation to him in December. He referred to the reference in the second call as a “normal word “and not “an insult “. He accepted that the investigation was underway and Ms A told him that if they found other matters they would be added. He was not warned that he was at risk of dismissal.

The Complainant confirmed that he was a hard worker exposed to huge pressure. He approached the investigation seeking to “introduce all I was thinking of “in a spirit of participation and cooperation.

He did not feel well, he was trying to find a solution and felt as if he was not in control. He did not request a legal representative.

He recalled the first disciplinary hearing on February 7, He was affected by Mr D having upheld his final written warning where the company had given credit to another party. He had not been believed.

He referred to the allegation of the unauthorised transaction as the first such occurrence in 4 years.

The Complainant recalled the decision taken to dismiss him, it was the worst moment in his life. He held a strong view that he was not obligated to ask to keep his job as he had his dignity. He was, however keen to continue working and had pressed on during the investigation as he really liked his work.

He recalled being dismissed as during the middle of the day at 2 pm. He was told to leave immediately, take his stuff, leave his badge at the entrance and go. He offered to stay and leave at the end of his shift. He refused to leave his badge and was ashamed. He contacted his Solicitor.

He began to look for work one week after his termination of employment. He was unsuccessful. He had never been out of work this long before. He submitted that he had brought his case to the WRC believing that he could get back to work and was disappointed to hear MR D said that there was no job to go back to.

During cross examination, the complainant re-affirmed that he had good English but was not fluent. He confirmed that he had instructed his legal team in English. He had not requested an Interpreter for the hearing. He had not worked at a call centre previously. He had no awareness of a complaints procedure.

The Complainant denied that he was finding it difficult to keep up. He had contemplated sourcing a solicitor on January 9 but he believed that the procedures were still at the friendly stage. He could not contemplate how a work colleague could defend him at hearings. He assumed that he was prevented from bringing a solicitor to the early stages of the process.

His was the sole voice on his behalf at the appeal hearing, his solicitor tried to speak once. He had no recall of the sales through service policy. He had not received training as he was already aware of how to deal with a difficult customer. He was not trained to insult a customer in a provocation setting.

The Complainant submitted that coaching sessions had not been inputted onto the main frame system by the Guides. He had no recall of each individual session of coaching directed towards him. He was committed to 40-50 calls per day and no time to dip in and out of the main frame system. He did not believe that a customer had the potential to harm him as he trusted everyone. The Main frame system was relied on solely to check targets.

The Complainant disputed the companies level of dissatisfaction as calls were cut off without a customer having complained. The Complainant reflected on his final written warning and he confirmed that he was aware that his employment was at risk. He signed for the final written warning two months’ post initiation.

In addressing the December 9, 2016 meeting, his insult was clear but the customers part was not clear. He believed that his line manager had “ put him in trouble “ but re-affirmed that he had not provided another transcript .He continued to hold the view that the call was doctored and edited .He explained the second call statement arose from a common practice of leaving phone set on speaker as noise control .The headset would then beep to indicate an incoming call .The Complainant submitted that he was denied access to the call surrounding the third allegation on the unauthorised transaction .He did not write notes as the calls were incessant and 89% of colleagues did not write and record .

He had considered bringing a colleague to the Disciplinary meeting but she was a manager.

The Complainant confirmed that he had asked for a letter of dismissal.

The Complainant submitted that he had not apologised as he was focussed on answering allegations. He added that he never acted to intentionally make an error.

The Complainant told the Adjudicator that he was about to apologise to the customer. He found the period October to December 2016 very testing and he was fed up by Ms as comments on his appearance, which prompted him to make a complaint, but he had not raised during the disciplinary process. He believed that he had been unfairly dismissed.

The Complainant confirmed that his Department of Social Protection payments had ceased and he had been living on his savings. He had made robust efforts to find work, but all were unsuccessful.

Counsel for the Complainant submitted that the complainant had been a high performer at the respondent business. He received his €90 bonus payment per month for reaching targets. About Redmond 13.72, 3rd edition, where the duty of the employer to set out clearly allegations made against an employee from the outset, Counsel contended that this had been disturbed in the present case and this hampered the complainant’s capacity to defend himself. He submitted Lyons as an analogous case where fair procedures were breached in summoning an applicant to a stage 4 disciplinary meeting.

The Complainant had periods of illness post dismissal. He received a DSP payment from March to August 2017 and had been available for work outside periods of illness. He demonstrated efforts to seek work. He applied for 125 jobs in total.

I have considered the facts raised in this case by the parties. I have considered the written and oral submissions and the evidence adduced. I have also considered the submissions made on the complainant’s ill health where the complainant was described as having low mood prior to and post his dismissal details of which were contained in a medical report furnished to the case. No medical evidence was advanced on this topic. I have also considered the company procedures.

It was very clear to me from the outset that the complainant was clearly traumatised by the events surrounding his dismissal in addition to the dismissal itself. I was pleased to see that his demeanour had improved when I met him in March 2018, as he had presented as very withdrawn during the preliminary matter heard in October 2017.

My role in this case is to decide whether the facts of the case amount to a fair or unfair dismissal. I appreciate that the Respondent carries the burden of proof in this instance and my jurisdiction lies firmly within section 6 of the Unfair Dismissals Act 1977, mindful that it is not up to me to declare whether the complainant’s actions were right or wrong. I intend to judge the facts within the Lord Denning described “band of reasonableness “test.

Des Ryan in Redmond on Dismissal, 3rd edition, outlines that the Employers right to dismiss an employee to protect business interests must be balanced in terms of the employees interests also. This was fairly reflected in Reilly and Bank of Ireland [2015] IEHC 241 by Noonan J.

The Complainants employment was terminated with pay in lieu of notice on 9 February 2017. This was not remedied on appeal. The Complainant has not worked since his dismissal.

Three allegations of misconduct and serious misconduct had been upheld against him following an Investigative and Disciplinary process, which comprised:

1 Inappropriate and unprofessional behaviour towards customers.

2 Dropped /Unanswered calls

3 Processing of an unauthorised transaction.

The Complainant was unrepresented during the stages preceding the Appeals. The Respondent was represented by several Managers with Human Resource back up.

I propose to address my findings in the case under the headings of:

1 Complainants base Disciplinary Status in December 2016

1. The Complainant was in possession of a final written warning still active in December 2016. This was activated for a period of 12 months from May 2016, in respect of interpersonal conflict. This warning was placed on the main frame computer record system and notified the severity of the status where

“This warning also confirms to you that any further incidents in relation to this or any other unacceptable conduct or behaviour will result in further disciplinary action up to and including termination “

The complainant was unsuccessful in his appeal of this sanction. I was struck by the strength of the injustice he still carried in relation to this action during the hearing. It was clear from the evidence that he believed that he had been wronged. He did, however, acknowledge that he knew that his employment was at risk from May 2016 onwards.

I was struck by the noticeable gaps in the complainants recall capacity for many of the coaching and training sessions recorded on the main frame computer system when questioned on this by Counsel for the Respondent. I found this to be unusual and only partly explained by the complainant himself when he submitted that he or others he worked with rarely consulted that aspect of the main frame computer system outside checking that their targets were met. He was permitted to input but didn’t. It was not disputed that the complainant relied on incentivised payments which were linked to these targets. His payslips reflected their consistent attainment. I found the memory gaps to be inconsistent with the complainants own self-assessment of his performance and it caused me to question the veracity of the self-assessment when matched with the computer records.

2 The Investigation

The Respondent announced an intention to hold an investigation into 2 of the complainants calls on 12 December 2016. These had been detected in the randomised audit and were a cause for concern and were subject of a meeting with the complainant’s team leader on 9 December ,2016 and coaching record.

The Complainants representatives submitted concerns of bias in relation to the roll out of this investigation given the prior involvement of Ms A in the earlier disciplinary sanction in May and her approach to the complainant on an issue of personal hygiene.

In a recent case of Heinz Peter Nasheur V NUI [2018] IECA 79,The Court of Appeal looked at the test for objective bias set out in Goode Concrete v CRH plc & Ors [2015] IESC 70. “The test to be applied when considering the issue of perceived bias is objective. It is whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. As it is an objective test, it does not involve the apprehension of a judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is in possession of all the relevant facts”

In applying this test, I could not establish any bias on Ms A s behalf. I found her a very cogent witness who repeatedly called on her own experience in the complainant’s role, which I found empathetic and objective. She also acted on any suggestions offered by the complainant in terms of the translations and the audit of the Italian Team.

The Respondent outlined that an Investigation commenced in accordance with company procedures. I found some deficits in this regard. There were no terms of reference governing the investigation. I found this a stark omission and found that the complainant would have benefitted from such a road map. It was clear to me that the Investigation was conducted by two persons rather than the one person delineated on the policy. The Investigation was to draw conclusions and silent on who should make the recommendations.

I had some unease on the composition of the investigation. It is not disputed that the complainant chose not to be represented at this stage. I find that this was unwise on his behalf. I appreciate from his evidence that he interpreted the stage as friendly but he also confirmed that he was aware of the fragility of his employment. therein lies a lot of conflict.

It isn’t uncommon in the world of work for an investigation to provide for associated relevant items to be included in the roll out. Throughout the case, the complainant’s representatives took issue at the inclusion of the dropped calls and addition of the authorised transaction into the pot of investigation. They submitted that they were opportunistic actions on behalf of the respondent. The Respondent denied this saying that they were added consistent with their discovery on the 13 and 14 of December, 2018. I inquired whether the 3rd allegation could have been processed first in time in line with the complaints policy? and did not secure a reasonable answer. I found that the 3rd allegation was somewhat shoe horned into the process, however, I must conclude that it was there from the start which distinguishes the facts From Kilsaran Concrete. The Complainant engaged with all three allegations and he had full knowledge of them.

In all investigations where the outcome has the potential to conclude in dismissal, it is vital for investigators to probe as comprehensively as possible. I note that the complainant did not specifically request that the customers be interviewed during the internal procedures. I appreciate that there may have been some commercial sensitivities on this for the respondent, however while I appreciate that the complainant did not dispute the facts of the allegations, he simply wished to place an alternative context and background to the events. He carried a high level of grievance that statements from other parties were not compiled during the investigation, but I could not establish his submissions in support of this prior to the hearing at WRC.

For the respondent’s part, they did set out the three allegations by 9 January, 2017. I had some difficulty with this approach as it disturbed the optimal timeframe referred to in the policy. The three allegations were then presented as findings on which the complainant was expected to comment. He was not involved in the fact-finding exercise that predated the meeting of 9 January 2017and I can see that this may have been confusing for him.

However, I noticed a marked different in how the complainant advanced the “hoodie” issue on January 5, 2017 and his presentation at the fact-finding stage of the investigation on January 9. His presentation and communication reflected in the “hoodie” emails were clear, purposeful and high on self-advocacy. This seemed to evaporate on his participation in the fact-finding process where he appeared to dismiss the concerns raised by the management team and where he referred to the Investigation manager in the “third person” without eye contact.

I was struck by this inconsistency. I believe that it would have been best practice for the respondent to have outlined the course of the investigation from the outset via agreed terms of reference, inclusive of the role expected of the complainant in terms of responses required the omission was a procedural deficit but not of sufficient proportions to render the dismissal automatically unfair. In Panasov v Pottle Pig farm UDD 175 (2017) The Labour Court held that :

“Failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses that render it unfair “

I established from Ms as evidence that the company had grave concerns surrounding the complainant’s performance in December 2016. I am satisfied that he was given a fair opportunity to advance his defence as evidenced in the succession of translations secured for the first call. I continue to hold the view that he would have benefitted from representation during this defence but I must also respect his decision in this regard. I am satisfied that he was offered representation and declined. I also note that he was offered time away from the phones to assist this defence but declined same in favour of maintaining his work load. It is of cardinal importance that the complainant confirmed all three allegations in the investigation.

While I have some reservations on the structural deficits of the investigation, I have found that the investigation, while slightly variant on the company policy formed a reasonable approach to establish the facts surrounding the allegations.

3 The Disciplinary Procedure / The Dismissal

A Disciplinary process is by its very nature a worrying time. As I considered this case, I was struck by the complainant as a solitary figure in the process. The Respondent did seek to reach out to him. I appreciate that he admitted to the three allegations albeit presented alternative contexts and backgrounds. I noted that the complainant submitted a medical report dated February 2017 to the hearing where his mood was deemed low for three months. I note that this matter was not raised during the Disciplinary process. It ought to have been.

I have reflected on the 4 translations of the first call. I note that the complainant submitted them as incomplete and edited and he wished his viewpoint of provocation be heard. I believe that he was heard on this point.

I found that the Respondent practiced a measured response to the Disciplinary hearing, first scheduled for February 7 but adjourned when the complainant displayed significant difficult in engaging.

I was struck by the forthrightness in Mr Ds evidence. I note that the complainant did not submit any additional information at this juncture. He seemed to submit to the authority of the respondent “Punish me, then punish team leader “. The Complainant apologised for his frustration.

The Complainant did not submit a fresh translation of the first call for the purposes of the hearing.

I was uneasy with the short duration of the deliberative process in this case. The dismissal was confirmed sometime during the same afternoon and the complainant was directed to leave simultaneously. I noted a cultural difference in the way the complainant approached his responses to being accused of serious misconduct. He sought to guard his honour and not plead for his job, whereas the Respondent clearly anticipated some arguments to consider on this key point. Again, I say a representative may have assisted the process in this regard.

In Abdullah V Tesco UD 1034/2014, the EAT determined that in considering the fairness or otherwise of a dismissal:

“What is required for a reasonable employer to show that he had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate “

I found that the Decision maker made a detailed analysis of the case presented to him. I found that he applied a fairness to the process and permitted supplementary arguments from the complainant. I was struck by his evidence that he was overtaken with the gravity of the situation without an apparent awareness of this gravity from the complainant, which did not justify a sanction short of dismissal.

In this , I am mindful on the description of Gross Misconduct in Lennon and Bredin M160/1978.

We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category.

The Complainant was accused of serious misconduct and misconduct. These were very serious matters for the company as they feared the threats to customer service relationships.

4. The Appeal

The Complainants representatives submitted that the complainant was permitted legal representation on appeal but only on a discretionary basis, with limited if any right to speak. The Respondent disputed the application of Lyons in the case. I found that once the complainant sought legal representation, it was permitted on discretionary grounds. I could not find any instance where advocacy for the complainant was curtailed in the Appeal hearing, given the extensive responses recorded to verbal submissions. These submissions originated from the complainant’s side.

The Complainant gave evidence that he did most of the talking in his own case. Ms E submitted that all 4 people present spoke. The key document referred to was the appeal dated February 13 ,2017. All parties agreed that this formed an integral part of the appeal. There were no supplementary documents outside a further reference to furnishing another copy of the translation of call one. I accept that the complainant had approached Ms E in terms of his dissatisfaction in early stages of the process but she had no recorded direct involvement with the case.

I found that the Respondent presided over a fair appeal where the complainant was permitted to raise points of concerns to reverse the decision. I did, however, find the Respondent references in Verbal Submissions 5 to be overly harsh in terms of negating the complainants scores in other areas of his work. I found this statement to be misplaced.

In considering a decision in this case, I spent some time considering all submissions in the case. I was struck from the outset on the complainants vulnerability where he approached the events of December 2016 on a final written warning . I believe that the Respondent did seek to discretely remind him of his status by way of coaching and discussion but the nuance was missed .He was clearly overwhelmed .

I found that the respondent has reached the test for reliance on conduct in accordance with Section 6(4) of the Act as a substantial ground for dismissal.

In applying the test for fairness/unfairness in Bunyan V UDT Trust [1982] ILRM 404-413, I found that they reached the objective standard in which a reasonable employer in those circumstances in that line of business would have behaved.

I then went on to consider the reasonableness of the employer in terms of Section 6(7) of the Act. As stated I did establish some structural /procedural deficits in the investigation but I did not establish that they compromised the complainant’s capacity to defend the case asked of him. I found that the complainant was hampered by his chosen lack of representation and his tendency to minimise and deflect the respondent concerns outlined regarding his performance.I found that the respondent behaved reasonably .

I have found the respondent arrived at the decision to dismiss in a reasonable manner and while I accept it was devastating for the complainant, I must find that the circumstances point to a fair dismissal in accordance with Section 6(4) of the Act.

I would however make one conclusion as a rider based on an idea formulated in Des Ryan’s

“Redmond on Dismissal” in non-Union employments.

I would suggest that an employer of this magnitude should consider training up a cadre of representatives with recognised skills in disciplinary matters such as those skills expounded by Mr D in this case. These representatives would then be of immediate benefit and immediately accessible in similar circumstances to this case and should not be viewed as undermining the right to consider union / legal representation. .

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the claim for unfair dismissal has not succeeded.

Dated:     26th June 2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words: