ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00002882

Parties:

Complaint(s):

Date of Adjudication Hearing: 01/09/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a general operative from 15th May 2013 until 26th February 2016. The Complainant was paid €371.84 gross per week for a 39-hour working week.

The Complainant maintained that she was unfairly dismissed as she had appealed a previous final written warning at the time of her dismissal and although this appeal had not been heard the Respondent had relied on the final written warning when dismissing the Complainant. The Complainant also submitted that the disciplinary hearing that led to her dismissal on 26th February 2016 was also flawed. The Complainant maintained the decision to dismiss her was therefore flawed and consequently her dismissal was unfair.

The Complainant is seeking redress of compensation for the alleged unfair dismissal.

Summary of Respondent’s Case:

The Respondent acknowledged that following a fact-finding investigation and disciplinary hearing in relation to alleged offences, the Complainant was dismissed on 26th February 2016 for exceeding the authority of her role by attempting to issue work instructions to a colleague, and for using abusive language towards work colleagues. The disciplinary sanction of dismissal was imposed as the Complainant was already on a Final Written Warning for a related offence.

The Respondent advised that the Complainant appealed the disciplinary sanction of dismissal and on 30th March 2016 the outcome of the appeal upheld the disciplinary sanction of dismissal as fair and reasonable in all the circumstances.

The Respondent submitted that on the day the Complainant was dismissed (26th February 2016) she lodged a claim against the Respondent to the Workplace Relations Commission (WRC) under the Industrial Relations Act 1969 “in relation to disciplinary sanctions up to and including dismissal”. The Respondent submitted that the Complainant stated on the Claim Form that she wished to “appeal a disciplinary sanction imposed on me unfairly.” The Respondent advised that the only disciplinary sanction that was in place in respect of the Complainant when the WRC complaint was lodged was her dismissal.

The Respondent acknowledged that the Complainant was on a final written warning with effect from 16th October 2015 for failure to carry out a reasonable work instruction, for consistent non-cooperation with colleagues and/or management, and for a breach of her contract of employment.

The Respondent advised that the WRC hearing took place on the 13th July 2016. The Respondent maintained that at the WRC hearing the Complainant’s representative referred to the Complainant’s dismissal when it was stated that the Industrial Relations claim “was lodged because [the Respondent] relied on the final written warning to dismiss the Complainant”. Therefore, it argued the Adjudicator at the hearing could only make a determination in respect of the dismissal of 26th February 2016. Further, the Respondent submitted that both parties made submissions in respect of the dismissal at the hearing and where it has also been accepted by the Adjudicator at that hearing that the Complainant did include submissions regarding her final written warning.

The Respondent advised that in the decision issued on the 3rd November 2016 the Adjudicator held that the Complainant “did intend to pursue a complaint in relation to that dismissal…Based on the evidence presented by both parties at the hearing, I find I am unable to adjudicate on the complaint on a final written warning as this was not the complaint filed by the Complainant on her complaint form.”

The Respondent further advised that the Complainant appealed this decision to the Labour Court and at the Labour Court hearing the Chairman pointed out to the Complainant that she would have been better to proceed with her claim under the Unfair Dismissals Act, 1977-2015 and on this basis the Complainant withdrew her appeal. The Respondent has argued that such withdrawal is too late as the claim under the Industrial Relations Act had already been heard and the decision issued is the same as the claim under the Unfair Dismal Act currently being presented for adjudication.

Accordingly, the Respondent had asserted that there should be finality in the decision of the 3rd November 2016, and the Respondent should not have to defend the same claim twice.

Preliminary Point

In light of the above submission the Respondent raised a preliminary point that as the Complainant has already brought her claim under reference ADJ-00002100, pursuant to s13 of the Industrial Relations Act, 1969 it was heard before an Adjudicator on the 13th July 2016, and a decision was issued on the 3rd November 2016. This decision was appealed to the Labour Court but the Complainant withdrew her appeal.

The Respondent therefore contended that the claim had already been heard and decided upon by an Adjudicator under the Industrial Relations Act. The Respondent submitted that the within claim is the same as the claim that was heard by an Adjudicator under the Industrial Relations Act, 1969, and as such the claim must be deemed as res judicata and cannot proceed. The Respondent further maintained that it is no consequence that the Complainant was unsuccessful in her claim due to her attempt to alter the claim lodged. The Respondent submitted that it was permitted to make submissions in respect of the dismissal at the 13th July 2016 Adjudication hearing, and which the Adjudicator considered this matter.

The Respondent argued that pursuant to the common law rule set out in Henderson v. Henderson [1843] 3 Hare 100, “there should be finality in litigation and that a party should not be twice vexed in the same manner”. With reference to Henderson v Henderson, the Respondent relied on Intel v. Cunningham [2013] IEHC 207, where Justice Hedigan dealt with the issue of duplication of or parallel proceedings where Justice Hedigan referred to Henderson v. Henderson and Woodhouse v Consignia PLC [2002] 1 WLR 2558 where it was stated: “The rationale for the rule in Henderson v Henderson (1843) 3 Hare 100 that, in the absence of special circumstances, parties should bring their whole case before the court so that all aspects of it may be decided (subject to appeal) once and for all, is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever, and that a defendant should not be oppressed by successive suits when one would do.” Justice Hedigan stated “Thus all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances. This is a rule that is of benefit to both plaintiffs and defendants, to the courts themselves and thus to the public interest…. Thus the application of the defendant to dismiss these proceedings must be allowed.

Notwithstanding the above, and without prejudice to the procedural point, the Respondent responded to the Unfair Dismissal claim.

Response to Complaint of Unfair Dismissal

The Respondent submitted a background to the basis of the final written warning that was issued to the Complainant in October 2015. It maintained the warning was issued following a disciplinary process which considered allegations that during the week commencing the 14th September 2015 the Complainant refused to complete a task as instructed by her line manager. Following this refusal, the Complainant attended a meeting with the Site Director, on Monday 21st September 2015, where the Complainant was given an opportunity to explain her reasons for this refusal. The Site Manager subsequently provided a letter to the Complainant the following week addressing each of the reasons which at the meeting the Complainant had explained about her behaviour. The Respondent submitted that it invited the Complainant to reconsider her position in order that the matter might be resolved informally. However, the Complainant declined to reconsider her position and the Disciplinary Procedure was initiated.

The Complainant was then invited to a disciplinary hearing by letter dated 30th September 2015 where the letter set out the matters that were being considered i.e. an alleged failure to carry out reasonable instructions; an allegation that the Complainant was engaged in consistent non-cooperation with colleagues or management; and an alleged breach of a term in her contract of employment which states “further, business process or methods may change from time to time brought on by, inter alia, technological change, market place change, improved business methods etc in such circumstances you are expected to cooperate with the implementation of such changes as are required and you will receive such reasonable notice of and training in respect of change as is practicable. The Company does not operate any compensation scheme for employees’ subject to such changes.”

The Respondent maintained that the Complainant was advised the disciplinary hearing was to consider the Complainant’s oral submissions, explanations, and any mitigating circumstances that the Complainant believes should be taken into account before disciplinary sanction, if any, was to be imposed; and that disciplinary sanction, if any, may be up to and including dismissal with or without notice. The letter also informed the Complainant that she may be represented at the hearing by a colleague or trade union official. The disciplinary hearing was set for two days later and that a note-taker would be present.

This meeting was rescheduled to the following week as the Complainant advised her representative was not available. The Complainant was advised the meeting would not be rescheduled again.

The Respondent maintained that the Complainant did not tell her representative until two days before the meeting, and when it received a request for a further postponement on the day of the scheduled hearing it refused to postpone the meeting again. As the Complainant did not wish to proceed that day the Respondent invited her to make written submissions answering the allegations by the end of business on the following working day, which was Monday the 12th October 2015. The Complainant did not submit a response in writing, however the Disciplinary Manager received a letter from the Complainant’s Union representative which stated:

• the Respondent’s decision not to communicate with the Union prior to the hearing deprived the Complainant of union representation;
• that on the 18th September 2015 when the matter was discussed with management, the Union indicated that if the matter could not be resolved locally they would be seeking the assistance of the Labour Relations Commission and that the matter had been referred to the Labour Relations Commission; and
• that the Union considered what had happened as a change in work practice which should not be dealt with under the Company’s disciplinary procedures.

The Respondent explained that it set out the outcome of the Disciplinary Hearing by letter dated 16th October 2015, and outlined the procedures it had adapted in coming to its decision and responded to submissions made by the Complainant’s Union. Specifically the Respondent advised it had examined the task that the Complainant had been instructed to do and considered the extent to which it amounted to a change from how she was operating. The Respondent had concluded that the difference, such as it is, amounted to a turning left instead of going straight with a negligible net change in travelling distance. The Respondent also outlined that in executing the task, the Complainant was using the same equipment she had always used, and she was using it in exactly the same way. The Respondent therefore did not accept that what the Complainant was being asked to do could be considered as a change in work practise. Accordingly, the disciplinary decision was that the Complaint was found guilty of:

1. 1. The alleged failure to carry out a reasonable work instruction;
   2. The allegation that the Complainant was engaged in consistent non- cooperation with colleagues or management; and
   3. The alleged breach of the term of her contract of employment as stated above.

The Respondent therefore upheld that all three allegations were well founded and disciplinary sanction was warranted. Accordingly, it advised the Complainant that a final written warning was being placed on the Complainant’s personal file for 12 months. This decision was appealed by the Complainant in writing by Friday 23rd October 2015.

The Respondent submitted that the Complainant wrote a joint letter of appeal with two other employees dated 26th October 2015 setting out her grounds of appeal. The appeal hearing took place on 29th October 2015 and the Complainant was represented at the hearing by her Union. The appeal, hearing, which was noted, upheld the disciplinary sanction and the Respondent wrote to the Complainant by letter dated 9th November 2015 setting out the outcome of the appeal. A further letter was sent to the Complainant’s representative that addressed in detail the matters that were raised during the appeal.

Matters Relating to the Dismissal

The Respondent submitted that on Wednesday 3rd February 2016 the Complainant made a verbal allegation against a work colleague to a Manager. The allegation related to a colleague who had used abusive language towards the Complainant and that the Manager was alleged to have given this colleague, a foreign national, permission to do so. A fact-finding investigation into the allegations was carried out by the manager which involved the manager interviewing four colleagues and the Complainant.

The Respondent submitted that the outcome   of the fact finding investigation was that a Disciplinary Procedure should be initiated against the Complainant’s colleague for the use of foul and abusive language; and also that a Disciplinary Process should be initiated against the Complainant on the basis that she was alleged to have engaged in persistent behaviour that may amount to bullying; to have exceeded the authority of her role; and to have used abusive language towards colleagues.

The Complainant was invited to a Disciplinary Hearing by letter dated 9th February 2016 where the disciplinary hearing was to examine whether or not there was any breach or breaches of Company rules or policies by the Complainant having first considered her oral submissions, explanations, and any mitigating circumstances that she believed should be taken into account. The allegations were set out in the letter to the Complainant and it was noted that if the alleged breach were upheld a disciplinary sanction, if any, may be up to and including dismissal, with or without notice.

The disciplinary hearing, which was held by the Risk Manager, was scheduled for the 15th February 2016. The Complainant was informed she had a right to be represented by a colleague or trade union representative. The Complainant attended the hearing, was represented by a work colleague, and notes of the hearing were taken. As the Complainant’s representative had taken part in the investigation the Complainant was advised that the Risk Manager would not be able to consider submissions from her representative that contradicted other witnesses evidence from the fact-finding investigation.

The Respondent advised that the Risk Manager considered the evidence presented and concluded that the Complainant was guilty of two of the three allegations (i.e. that she exceeded the authority of her role by attempting to issue a work instruction to a colleague, and for the use of abusive language towards a work colleague). By letter dated 26th February 2016, the Risk Manager set out the outcome of the disciplinary hearing, provided a rationale for his conclusions and the basis for upholding two of the three allegations against the Complainant. The Complainant was advised that as she was already on a final written warning since 16th October 2015 the appropriate disciplinary sanction was dismissal with notice. The Complainant was advised that she would be paid in lieu of notice to give her time to find alternative employment. The Complainant was also informed that she had a right to appeal the decision in writing to the Managing Director before 4th March 2916.

The Respondent advised that on the same date of the Complainant’s dismissal (26th February 2916), the Complainant lodged a claim into the WRC. The Respondent received notification of this complaint from the WRC on 29th February 2016. On this date the Complainant also appealed the dismissal to the Respondent stating the ground of the appeal was that it was extreme and harsh. The appeal submitted by the Complainant referred to mitigating circumstances and other issues experienced by the Complainant in her workplace.

An appeal hearing took place on 15th March 2016. The Complainant was represented by a Union Official and a note taker was also present. At the appeal hearing, the Complainant furnished the Respondent with further written submissions. On 30th March 2016, the Respondent maintained that it wrote to the Complainant with the outcome of the appeal hearing. In its letter the Respondent submitted that it went through the events that occurred in respect of the fact-finding investigation and disciplinary process up to and including the appeal. The letter addressed the appeal issues raised by the Complainant and concluded that the two allegations against the Complainant were validly raised, that they were fully examined, that the Complainant was given opportunity to make submissions on her own behalf which were considered, and her concerns were addressed. The Respondent advised that it found that on the balance of probabilities the Risk Manager was reasonable in upholding the two allegations against the Complainant and applying the disciplinary sanction of dismissal.

Legal Submission

The Respondent referred to jurisprudence with regard to cases of dismissals as follows:

In Hennessy v. Read & Write Shop Limited UD 192/1978:“In deciding whether or not the dismissal of the Complainant was unfair we apply a test of reasonableness to

• the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the Complainant, and

1. the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the Complainant should be dismissed.”

The Respondent also submitted that Dr Mary Redmond in her book “Dismissal Law in Ireland” states at paragraph 13.69 that it has been established that provided that they have not expired an employer may take previous warnings into account when deciding to dismiss an employee. She goes on to refer to a UK case of Auguste Noel v. Curtis [1990] IRLR 326 and states that the fact that the conduct was different on the occasions that the warnings were given does not render the previous warnings irrelevant. Furthermore, the Respondent argued the UK Court of Appeal in Davies v. Sandwell Metropolitan Borough Council [2013] EWCA CIV 135 examined how a final written warning should be considered when determining whether the subsequent dismissal was unfair. Lord Justice Mummery agreed with the statement of Elias LJ that “…it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it and that it must not have been manifestly inappropriate to issue it.” He went on to state that in determining whether a dismissal is fair or unfair in cases where there has been a prior final warning is whether “it was reasonable for the employer to treat the conduct reason, taken together with the circumstance of the final written warning, as sufficient to dismiss the Complainant….Secondly in answering that question, it is not the function of the ET [Employment Tribunal] to re-open the final warning and rule on an issue raised by the Complainant as to whether the final warning should, or should not, have been issued and whether it was a legally valid warning or a “nullity”. The function of the ET is to apply the objective statutory test of reasonableness to determine whether the final warning was a circumstance, which a reasonable employer could reasonably take into account in the decision to dismiss the Complainant for subsequent misconduct.Thirdly, it is relevant for the ET to consider whether the final warning was issued in good faith, whether there were prima facie grounds for following the final warning procedure and whether it was manifestly inappropriate to issue the warning. They are material factors in assessing the reasonableness of the decision to dismiss by reference, inter alia, the circumstance of the final warning.”

The Respondent asserted that it followed fair procedures in respect of the disciplinary process that led to the dismissal. A fact-finding investigation took place, the Complainant was represented by a work colleague at the disciplinary hearing and by her union representative at the appeal. Both the Complainant and her union representative furnished written submissions to the appeal together with an additional written submission, which were considered in full and this resulted in the outcome of the appeal being 10 pages long.

Summary of Complainant’s Case:

The Complainant submitted that she was on a final written warning from October 2015 for failing to carry out her work duties. She maintained that the reason for not carrying out the work at the time was due to a dispute regarding a change in work practices, and where the Union had already referred the change of work practices to then LRC in September 2015 for a conciliation conference. The Complainant maintained that the Respondent had been made aware of this dispute by the Union in a letter dated 17th September 2015.

As the matter had been submitted to the LRC the Complainant’s Union had requested to the Respondent that “The status quo remain”, and that no disciplinary procedures should progress until the dispute was discussed at the LRC. However, the Complainant contended that the Respondent chose to ignore this information and took disciplinary action against three members of staff, including the Complainant, who had objected to the change on health and safety grounds.

The Complainant maintained that the disciplinary issue of October 2015 referred to the loading of pallets, and where the dispute arose regarding safety concerns at the time. The Complainant maintained that as two other members of staff held similar concerns it was a collective issue and where she should not have been subject to disciplinary proceedings. The Complainant also submitted that at the time of the disciplinary hearings in October 2015 the Respondent did not provide reasonable time to allow her to be represented by a union representative and contended this was a breach of her rights and not compliant with S.I. 146 of 2000. She has also maintained that the Respondent’s statement, made at a subsequent WRC hearing in July 2016 into the matter, viewed this as being delay tactics by the Complainant, an opinion that she strongly objected to. The Complainant had also contended that she was not provided with a health and safety risk assessment relating to the new work practice that was in dispute until the WRC hearing in July 2016.

Issues Relating to the Dismissal

The Complainant advised that she was again subject to a disciplinary procedure in February 2016 where the charges related to an allegation of bullying, an allegation of the Complainant exceeding her authority in issuing instruction, and an allegation that she used abusive language against her colleagues. The Complainant maintained that she did not exceed her authority and was only adhering to a custom and practice on the line and therefore it was not an instruction. The Complainant also advised that the language used by her at the time was banter used by all staff from time to time. On that basis the Complainant contended that her dismissal on 26th February 2016 was not justified when the mitigating circumstances are looked at, and it was therefore an unfair dismissal.

In addition, and more significantly the Complainant maintained that the final written warning that had been issued was under appeal at the time of her dismissal, as she had submitted an appeal regarding that procedure on 26th February 2016, which was the day of the disciplinary hearing. Her Trade Union advised that due to circumstances beyond its control there was a delay in it submitting this appeal to the Respondent until 26th February 2016.

The Complainant maintained that the fact that the appeal was submitted on the day of dismissal should not preclude her from natural justice. It further advised that the internal appeal outcome to the disciplinary procedure of October 2015 had not concluded until 09th November 2015. As the Complainant was unhappy with the outcome of the October 2015 procedure she sought to appeal it to the WRC, and this was heard by an Adjudicator in July 2016, under the Industrial Relations Act. She advised that the decision of the Adjudicator was appealed to the Labour Court. The Complainant further advised that she withdrew her appeal to the Labour Court on the basis she was advised the complaint would best be progressed under the Unfair Dismissals Act.

With regard to the disciplinary procedures in February 2016, the Complainant advised that an unwritten and ad hoc rotation agreement existed between staff which worked well until one employee decided he didn’t want to move, and this is what led to an altercation between the Complainant and her colleague in February 2016. The Complainant submitted that the employee had told her had permission from the manager to tell her to F… Off when she asked him to rotate.  

The Complainant advised she was upset at this and sought clarification on the matter from the manager where she maintained that the colleague had in fact lied about getting permission from the manager to tell her to F…Off. However, the colleague had also made allegations against the Complainant and an investigation was held by the Respondent where the outcome was the Complainant was accused of being racist in her attitude to her work colleague, and where this complaint was upheld on the balance of probability. The Complainant argued that as the employee in question had formally admitted to lying about having permission to tell her to F… Off, that by relying on his evidence on the balance of probability, the findings were unfair.

With regard to the local practice, the Complainant maintained that it was custom practice that an ad hoc rotation arrangement existed and where the colleague had refused to cooperate with this arrangement, had used robust language towards her, and had admitted to being a liar. She maintained that to be found guilty for the use of language was also unfair, as such language was in fact part of the camaraderie in the workplace. Furthermore, the Complainant contended that as the manager was the person alleged to have told the Complainant’s colleague he could tell her to F…Off, that the manager should not have been appointed to conduct the fact-finding investigation.

In effect the Complainant contended that she was dismissed based on another member of staff’s lies, that the investigation was not impartial as the fact finding investigator was involved in the complaint, that there were no written or signed statements of the alleged abusive language used provided to her, that no dates supporting the evidence was provided to her, and that the phrases used by the Complainant towards her colleague was never intended to be offensive.

The Complainant also submitted that it was only after she had raised her concerns about the lack of cooperation of her colleague that complaints were raised against her.

Findings and Conclusions:

Finding on Procedural Point

Before considering the substantive issue, I must first consider the procedural point raised by the Respondent in that the Respondent has argued the unfair dismissal complaint has already been heard and decided upon, and in accordance with the juris prudence set under Henderson V Henderson and associated cases the complainant cannot have the same case heard again in a different tribunal.

Having carefully reviewed the matter I find that the first complaint to the WRC in July 2016 clearly identifies that the Complainant was seeking to appeal a disciplinary sanction that she maintained was imposed on her unfairly, and where she was not appealing her dismissal. In her evidence to the current complaint the Complainant advised that that is what she presented at the adjudication hearing in July 2016.

A review of the adjudication recommendation ADJ-00002100 documents that the Complainant’s submission referred to the October 2015 disciplinary process, and the final written warning that was issued at that time. In this complaint the Complainant was seeking to have the final written warning removed. The Adjudicator noted in his recommendation that the Respondent’s submission clearly dealt with the Complainant’s dismissal, and had made this response based on what had been submitted on the complaint form. Accordingly, the recommendation from the Adjudicator was that he was unable to adjudicate on the complaint of a final written warning as this was not the complaint filed by the Complainant on her complaint form. What is significant is that the Complainant appealed this recommendation to the Labour Court, but withdrew her appeal.

It is also significant that after submitting her complaint to the WRC on 26th February 2916 regarding the written warning, the Complainant submitted an internal appeal to the decision to dismiss her, and this appeal was heard by the Respondent.

I find the statement by the Respondent that the only disciplinary sanction that applied on 26th February 2016 was the decision to dismiss to be somewhat gratuitous, and incorrect. The Complainant was serving a disciplinary sanction of a final written warning before her dismissal and this sanction still applied on 26th February 2016. Indeed, the Respondent in its own evidence stated that it relied on that sanction when it decided to dismiss the Complainant. On that basis all of the parties were aware the final written warning still applied on 26th February 2016, and where the Complainant was statutorily entitled to seek a recommendation of this matter to the WRC under the Industrial Relations Act, which she did.

I am therefore satisfied that the complaint brought to the WRC on 26th February 2016 (ADJ-00002100) only related to the disciplinary process of October 2015, the outcome of which was the final written warning. As the Complainant withdrew her appeal to the Labour Court regarding the issuing of a final written warning in October 2015, I find that the final written warning must now stand.

With regard as to whether a decision has already been made on her dismissal, as contended by the Respondent, I must again refer to the first complaint (ADJ-00002100) which was submitted under the Industrial Relations Act. In her complaint form, the Complainant states that she with wished to appeal a disciplinary sanction imposed on her unfairly. Also in her submission to the Adjudicator at the hearing, the Adjudicator’s recommendation details that the Complainant referred only to the October 2015 disciplinary procedure during the hearing, and not the dismissal. This is noted in the Adjudicator’s summary of the Complainant’s submission. It is also noteworthy that the Adjudicator in his findings states that the Complainant lodged her complaint on the same date as dismissal so it is clear that she did intend to pursue a complaint in relation to that dismissal. However, she only pursued the complaint relating to a final written warning which she received on 16 October 2015. The Adjudicator therefore separates the two claims in his recommendation, and makes no recommendation or findings in relation to an unfair dismissal. The Adjudicator further states that he was unable to adjudicate on the complaint of the written warning.

On that basis I am satisfied that neither was there a complaint of unfair dismissal raised within the complainant ADJ-00002100, nor did the Complainant present a complaint of unfair dismissal at that adjudication hearing, and nor was a complaint of unfair dismissal decided upon. The unfair dismissal may well have been discussed at the hearing, particularly in light of the impact of the final written as the Complainant had been dismissed by time of the adjudication hearing. However, the complaint of the unfair dismissal was not decided upon by the Adjudicator at this hearing.   It appears to me that the Respondent erroneously drew the conclusion that the complaint in February 2016 to the WRC referred to the dismissal, and prepared its response to the industrial relations complaint on that basis. But that was not the complaint raised, and in light of the confusion the Adjudicator could not make a recommendation on the final written warning, and more significantly did not make any findings on a complaint of an Unfair Dismissal at this hearing.

Whilst acknowledging the specific complaint in the WRC complaint from refers to Industrial Relations Issue Type: Complaint in relation to disciplinary sanctions up to and including dismissal, it must be noted that this is a drop-down menu afforded to a complainant, and it is evident it is the only option where a complainant can indicate the complaint relates to a disciplinary process. It is therefore unreasonable to conclude that because this box is ticked that a complaint only refers to a dismissal. This drop-down box clearly states disciplinary sanctions up to and including dismissal, but it is note exclusive to only complaint of unfair dismissal. It is entirely unreasonable for the respondent to seek to rely on this box being ticked as a basis to contend the industrial relations complaint was about the dismissal, particularly in light of the chronology of events related to the complaint within the current hearing.

In conclusion, and based on all the evidence and background information provided I am satisfied that the Complainant had presented a complaint of receiving a final written warning under the Industrial Relations Act to the WRC on 26th February 2016, and the adjudication report issued by the Adjudicator is a recommendation made under the Industrial Relations Act regarding the final written warning, and not a recommendation or decision with regard to the dismissal. I find that the case associated with the current complaint is different to what has been previously presented to the WRC, has not been decided upon before, and therefore is not a duplication of the earlier complaint, or a situation where the Respondent has been twice vexed in the same manner. I therefore dismiss the procedural point raised by the Respondent.

Finding of Unfair Dismissal

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In the case within the Complainant has argued that she was unfairly dismissed due to:

1. No consideration had been given to her appeal against the final written warning that was issued to her n October 2015,
2. That the fact-finding investigation in February 2016 was not impartial as the manager conducting it was a person who had been involved in the complaint that she first raised
3. That the complaints against her were only raised after she brought her complaint to the Respondent
4. That the decision based on the balance of probability favoured the testimony of a person who had lied when compared to the testimony of others, and in effect where not clear evidence of the alleged wrongdoing were presented to the Complainant.

In relation to procedural fairness, I am guided not only by the Respondent’ disciplinary policy, but also by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues (reflecting the varying circumstances of enterprises/organisations), must comply with the general principles of natural justice and fair procedures. The contractual and constitutional rights to fair procedures are also well established (in Haughey [1971] IR 217). Such rights provide for a right of appeal, and to be heard as part of that appeal process.

Based on the evidence provided I am satisfied that complaints were raised against the Complainant as part of the fact-finding investigation of the complaint she had raised about a fellow employee. Both sets of complaints (the Complainant’s complaint and the complaints about the Complainant) were investigated as part of the fact-finding process. I am satisfied that based on these complaints the Respondent was entitled to and obliged to conduct an investigation of these matters.

The Complainant has submitted that the fact-finding investigation was conducted by a manager who was a party associated with her complaint that a fellow employee had, inter alia, told her to F…off on that managers instruction. Whilst acknowledging this has potential for bias, it is noted that the Compliant did not raise any concerns at the time of the investigation about the manager’s involvement in the fact-finding investigation, and furthermore the manager’s report upheld the Complainant’s complaint and recommended the behaviour of the Complainant’s colleague warranted a disciplinary process. According her complaint had been validated. In addition, in light of the other issues that came to light as part of the investigation, the manager also recommended that the Complainant’s behaviour warranted a disciplinary process. I do not find this fact-finding investigation was unreasonable or unfair on the Complainant, albeit the evidence presented to the within hearing which the Respondent maintains it relied upon appears limited. Notwithstanding all the evidence gathered in that investigation was shared with the Complainant, and what was presented to this hearing was a summary report of the investigation and where this report was also shared with the Complainant at the time.

Following the fact-finding investigation, the Complainant was invited into a disciplinary process where a different manager conducted the hearing. Records of the disciplinary meeting between the manager and the Complainant were provided, as was a document providing the summary and outcome of the fact-finding investigation. It appears that the fact-finding report including meeting notes supporting that, and the responses provided at Complaint’s disciplinary meeting were relied upon by the manager conducting the disciplinary hearing.

The fact-finding report indicated that the line manager had confirmed the Complainant had attempted to instruct one of her colleagues to swap roles, and where the line manager confirmed that it was not for the Complainant to make such a request. This matter was central to the issues that happened that day. The line manage also stated that she had already given instructions on the matter. The evidence therefore suggests that the Complainant had attempted to issue instructions contrary to those already given by the line manager. There is no evidence to suggest that the manager conducting the disciplinary hearing sought to meet with other witness, however neither is there evidence provided to support that that the Complainant sought for this to happen until it was commented on during the appeal process. Similarly, whilst the information relied upon by the manager conducting the disciplinary hearing provided to the adjudication hearing is limited, the fact-finding report does provide corroborating evidence from the parties, and supports that it was not only the evidence from the employee that allegedly lied that was relied upon.

With regard to the allegation that the Complainant used abusive language, the Complaint has submitted that no evidence was either sought about this allegation, or provided to the Complainant. A review of the fact-finding report provided to the current hearing does not demonstrate any specific allegations against the Complainant other than mentioning that the Complainant was in the habit of calling a colleague names. However, the disciplinary report does refer to specific words made on the day by the Complainant to her colleague, to derogatory comments she made about another manager, and where these comments were witnessed by the line manager. All of this evidence appears to have been provided to the Complainant and therefore she had been provided with the specifics of the complaints, and it is evident the matters referred to the altercation on the 3rd February 2016. On that basis I am satisfied the evidence supports that inappropriate language was used. It is also referenced that the Complainant appeared to be dissatisfied with the situation for a period of approximately four hours on that day, and where her behaviour continued over this time. It is understood that the Complainant was provided with this evidence as part of the fact-finding investigation. I therefore conclude that the disciplinary hearing upheld the allegation of abusive language based on the evidence presented to it, and that it was reasonable for the manager conducting the disciplinary hearing to conclude this allegation was well founded.

In summary, I therefore conclude that whilst there may be some gaps in the evidence provided regarding the substantive matters of the fact-finding investigation and subsequent disciplinary hearing, the Respondent did conduct a staged process, provided the Complainant with the evidence of the fact-finding investigation, invited her to respond to these matters in the disciplinary hearing, and afforded her an appeal. The records provided to the current hearing demonstrate that a detailed appeal process was conducted.

I am satisfied the disciplinary findings are based on the information gathered and where the Complainant was provided with every opportunity to respond to the allegations, and where a detailed disciplinary report and subsequent appeal findings were shared with her.

In the case within the Complainant has also argued that the response of the Respondent to dismiss her was disproportionate, should not have relied upon the former written warning, and as such deemed the dismissal to be unfair under the circumstances. In consideration of this matter I am satisfied that the final written warning, which related to a refusal to carry out reasonable instructions, remained as the Complainant withdrew her appeal of this warning at the Labour Court. It is therefore reasonable for the Respondent to consider this warning when deciding on a disciplinary sanction.

As the Complainant was found guilty of breaches of conduct and behaviour identified in the disciplinary procedures, and where she was on a final written warning related to some of the behaviours she was found in breach of on 3rd February 2016, I find that the Respondent was entitled consider the final written warning when deciding on the sanction to dismiss. It is evident that the conduct of the Complainant was a significant factor on the day in question, and where following the reasonable administration of the disciplinary procedures by the Respondent, the Complainant was found guilty and in light of her disciplinary record the decision to dismiss her on 26th February 2016 was not unreasonable. I therefore find that the dismissal was fair and that the Respondent is not in breach of the Unfair Dismissals Acts.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim.

Having considered the complaint, and having afforded the parties to the claim an opportunity to be heard and to present any evidence relevant to the claim, for the aforesaid reasons, I find this complaint is not well-founded and decide that the Complainant was fairly dismissed by the Respondent. The complaint of unfair dismissal therefore is not upheld..

Dated:   9th March 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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