Complainant

Respondent

Anonymised Parties

A Senior Technical Support Advisor

A Computer Company

Representatives

Deirdre Canty, SIPTU Official

David Pearson, Solicitor, JW  O ‘Donovan 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-00009344-001

27/01/2017

The Complainant commenced work on 10 December, 2014 and was dismissed for gross misconduct on 9 January 2017.He worked from a Home base on a 39-hour week. Both parties made extensive submissions in the case. The Respondent rejected the claim.

The Respondent operates a large-scale Computer business and employs more than 5,000 employees. The Respondent was represented by a Solicitor and three witnesses gave evidence.

Ms A. Area Manager

Mr B Employee Relations Manager

Mr C Line Manager

The Respondent relied on written and oral submissions and I have outlined a summary of the written submission. The Dismissal followed an extensive Disciplinary procedure concerning the changing and falsification of company records in the form of a named Clinical Tool in Business.AT Investigation stage there were 23 such instances. These narrowed to 19 at the Disciplinary stage and subsequently came down to 7 instances.

The Complainant took up work as at Home advisor (Customer Service) on 14 December, 2014.He was advised of policies and procedures and completed mandatory business training on an annual basis.

The Company operates a “Peer Review system” whereby colleagues share constructive feedback on their colleague’s interactions with customers, copies of which are sent to the Manager.

Feedback on the complainants work activity alleged that he may have modified the record of customers email addresses. Customer email addresses are used to send customer satisfaction survey request to measure their experience. There is a requirement for precision in email addresses. This metric I slinked to an employee’s annual review and any salary increase or bonus awarded.

The Complainant was invited to attend an Investigation meeting on 18 November to “discuss inconsistencies found where surveys had not been sent in 23 listed cases. He was invited to bring a representative.

This moved into a Disciplinary hearing on December 9, having been deferred on three occasions by the complainant. Both parties made written submissions. A second Disciplinary hearing was scheduled for 4 January, 2017.The Complainant attended with a company colleague and received the findings of the Investigation.

The Complainants submissions were fully considered following the investigation meeting and two disciplinary hearings and he was invited to an outcome meeting on 9 January, 2017, where his employment was terminated on four weeks’ pay in lieu of notice. The reason for dismissal was gross misconduct. The Complainant waivered his opportunity to appeal.

The Respondent denied that the Dismissal was unfair. The Respondent followed the company disciplinary policy and procedures and adhered to natural justice and procedural fairness.

The Respondent had taken time to analyse the evidence in the case and had taken account of the complainant’s feedback and came to the only reasonable conclusion that the complainant had deliberately modified customer email addresses to avoid potentially negative surveys.

This metric is integral component of the business and any actions which would improperly impact this is viewed as a serious breach of policy. The Respondent relied on Section 6(4) of the Act, where conduct was described as the substantial reason for dismissal.

The Complainant did not exhaust all internal remedies prior to seeking a remedy under the Unfair Dismissals Act and contributed to the Dismissal by his own actions and conduct.

Evidence of Mr B. Employee Relations Manager:

Mr B helpfully outlined the Business Tool Which Home Advisors were requiring to follow. The Tool was an integral part of measurement which in turn fed unto the annual performance review.

He confirmed that Terms of Reference governing the Investigation were provided by way of the Disciplinary procedure furnished to the complainant. He was not party to the investigation.

Mr B confirmed that the Complainant had advocated ably on his own behalf during the Disciplinary process. He submitted that Fair Procedures were followed.

During cross examination, Mr B confirmed that employees did not have specific training in representation skills set. He found that the complainant was one of the most thorough and eloquent responders he had seen in practice. He availed of two different employees of his own choosing and he was not deliberately refused an external Trade Union Representative. His voice was heard and considered.

Mr B reaffirmed the company agreement on Union representation on the Manufacturing side of the business. He denied that SI 146/2000 had been breached as there was no entitlement to a Trae Union Representative.

Evidence of Mr C, Line Manager

Mr C outlined that he worked as an “At Home Manager”. He met each month for a 1:1 with the Advisors. He received internal feedback on the Business Tool on November 11,2016. He reviewed the information, pulled 65 cases of which 23 were a cause for concern and notified the complainant of his intention to hold an Investigation.

He confirmed that Home Advisors were not covered by Trade Union Recognition. This was the preserve of the Manufacturing aspect of the business. He outlined that he met with the Complainant on 18 November to review the cases with the complainant. The meeting lasted 1.5 hrs and took place in an internal skype setting. He concluded that he needed more information on 19 of the cases as a certain pattern appeared to be emerging.

He moved the matter to a Disciplinary Hearing footing on 9 December which lasted 3.5 hours. He reviewed 19 of the cases and checked with the complainant how it happened. The Complainant presented a detailed response.

HE submitted that he had investigated all the tools. All internal tasks were correct. He submitted that The Complainants responses were not possible.

The meeting reconvened on January 4, 2017, where the complainant was represented by a fellow employee. The focus was now on 7 cases which were reviewed at the meeting. The repeated practice of “copying and pasting “was a cause for concern to him. The whole department had lost business tools and Mr C offered to share screen shots of this tool.

The Complainant confirmed that he couldn’t hear calls and copy and pasted from the tool but Mr C couldn’t find an edited email address. The Complainant asked if the 6th or 7th of January be set aside for the Outcome meeting.

The Disciplinary outcome meeting was set for January 9, 2017.The Complainant had received the screenshots and said they were insufficient and asked that the meeting progress to the outcome stage. The Meeting lasted 35 minutes. Dismissal was confirmed.

During cross examination, Mr C confirmed that the Dismissal letter was read out but was unsigned. He confirmed that Ms A was the decision maker. He confirmed that he hosted the Investigation and Disciplinary procedure. He was unsure if minutes of January 9 were given to the complainant. He confirmed that the screenshots were given to the complainant. The Complainants representative clarified that minutes were not given as the complainant’s email was de-activated on dismissal.

Mr C confirmed that the complainant was aware that his job was at risk by the reference to gross misconduct on the Company Disciplinary Policy.

Evidence of Ms A: Area Manager

Ms A confirmed that she was stepping in for another manager. There were 6 Team Managers and 120 Home Advisors. She was asked to become involved at the Disciplinary stage by Mr C. If cases are complex an Area Manager becomes involved. She attended both Disciplinary meetings. After the last Disciplinary hearing, a 35 -45-minute meeting followed which, she took away the case for further consideration. She ensured that the screenshots were given to the complainant.

At the outcome meeting, Ms A submitted that had the complainant sought additional time on the screen shot issue, that would have been allowed. The decision to dismiss was confirmed and no appeal followed.

During cross examination,

Ms A confirmed her role in the process as listening to hear both sides i.e. that which Mr C advanced and that advanced by the complainant. She was not involved in the decision on Trade Union Representation. The Complainant was aware of the risk of his termination from the Disciplinary policy. Ms A confirmed that she had listened to and taken account of the complainant’s representative on the first day of Disciplinary hearing.

The Decision to dismiss was based on 7 compelling cases and while other options short of dismissal were considered, the decision was termination of employment based on the evidence.

Ms A confirmed that while the decision to dismiss was hers and she had written the letter, the administrative task of signing the letter of dismissal rested with Mr C as line manager.

She confirmed that 4 customers had updated records in the interim of both Disciplinary meetings and this meant that the records were naturally updated.

The Respondent legal representative made several legal submissions in the case:

The company has a disciplinary policy and procedure which has been consistently applied across its business for more than 30 years.

The Company does not recognise any trade union for its business operations outside manufacturing operations. Trade Union representation is permitted via a Union Official with whom the company has an agreement, or a lay trade union official or representative who can provide a certificate in writing by his Union of evidence of competence in representation.

The Concept of an employer considering two different types of employees within the one employment as completely separate categories is a legally acceptable concept and supported by the Supreme Court in Ryan Air V Labour Court [2007] IESC 6. The Court recognise the rights of the employer to conduct collective bargaining with different categories of employees in respect of internal disputes resolution mechanisms. Not all employees were entitled to the same process.

In O Halloran V Dunne’s Stores UD 1503/2009, the EAT determined that the Respondent had a Disciplinary and Dismissal Policy in place which was in general conformity with the guidelines in SI 146/2000. An employee representative correspondence to a representative of the employees choosing. The Tribunal determined that a “clear line of authority emanating from the Superior courts establish that an employee facing disciplinary action is entitled to the benefit of fair procedures and that what these demands will depend on the employee’s terms and conditions of employment and the circumstances surrounding the Disciplinary action”.

The Respondent disputed the application of Lyons in the case, which had not considered the Supreme Court judgement in Burns V Governor of Castlerea Prison. The question of legal representation did not arise in the current case.

The Respondent also disputed the application of Worker V Apple Distribution as it did not refer to Union Representation and instead focussed on the differentiation between the roles of Observer and representative in a Disciplinary setting.

The Complainant was represented by a Trade Union who outlined the case on his behalf by way of written and oral submissions. I drew the attention of the parties to the WRC Guide to Procedures in the aftermath of the first day of hearing. The Complainant also gave evidence in the case.

The Union submitted that the complainant had been unfairly dismissed on 9 January, 2017.At that time, he held a clean employment record. The Complainant earned a Gross Pay of 2700.00 euro monthly for a 39-hour week worked from a Home base. The Call centre had been 15 years in operation. The Complainant had been promoted during his probationary period. He had secured new employment on 4 September 2017.

On 17 November ,2016, the complainant was invited to attend an investigation meeting scheduled for 18 November, 2016.This meeting was to discuss inconsistencies found where surveys have not been sent in 23 mentioned cases. A Disciplinary hearing followed on 9 December to allow the complainant time to confer with his Union.

The Respondent took issue with the complainants chosen representative, a full-time union official as the company required the presence of either an employee or a Trade Union Representative. On 23 November, the respondent set out section 7.1 of the Disciplinary procedure on Trade Union representation constituting one of the following:

1.       A Full-Time Official employed by a Trade Union where the company has a Formal Agreement.

Or

2.       A Lay Trade Union Official or workplace representative representing a Union with whom the respondent has a formal agreement and who can produce a certificate of competence in representation in disciplinary proceedings.

The Union submitted that the Respondent did not have a formal agreement with any trade union.

The Union advised the company that the complaint would be represented by a full time official at the December 9 hearing. The Respondent took issue with this because the permitted representative had to be an employee of the company.

The Hearing went ahead on December 9 and the Complainant was accompanied by a work colleague during a 2.5-hour meeting. The Complainant submitted a written response at the beginning of the meeting where he denied the allegations The Respondent was represented by:

1 Area Manager, Ms A

2 Employee Relations Manager Mr B

3 Line Manager   Mr. C

The complainant was advised that Ms A was to be the note taker and became concerned following her interjections during the meeting and regarding the accuracy of her notes.

The hearing was adjourned and resumed on 4 January ,2017 where the complainant was accompanied by a different employee and the Respondent Team were as before. The Complainant followed up on the results of the Disciplinary Investigation and was informed they would be addressed at the meeting.

At the hearing, the complainant was advised that the initial 23 concerns had been reduced to 7. He sought details of an internal support tool and was refused. Instead, he was introduced to screenshots of the support tool but denied their retention. The Complainant submitted details of his own recollection of the meeting and secured the screenshot and minutes on the following day. An invitation to a Disciplinary outcome meeting followed on January 6,2017.

The complainant raised several grievances in response to the invitation.

1 He had not been permitted to analyse the screenshots.

2 The meeting was to occur via Skype/Videoconferencing. The previous meeting was held via the same medium and had been interrupted.

3. He sought the missing screen shots and remarked that the screenshots in his possession were insufficient.

The Union submitted that the complainant was assured that he could discuss the screenshots early in the outcome meeting.

Mr C subsequently brought up the screenshots but the complainant did not engage, as he stated that he would wait to raise it on appeal. He then learned that the appeal was to be directed to Mr Bathe Employee Relations Manager who had already participated in the process.

The Respondent terminated the complainant’s employment at the meeting by reading out a letter where 7 email addresses were shown to have been intentionally incorrectly updated and found to constitute gross misconduct warranting dismissal with four weeks’ pay in lieu of notice.

The Union put forward several arguments in support of the complainant.

1.The Metric was but one of 10 other metrics used.

2 The Complainant has experienced poor audio on one call which may have had a negative effect on the call.

3 The Respondent had not attempted to reach out to the 7 customers to ascertain whether they were dissatisfied with the service.

4 The Complainant believed the proffered appeal to be fruitless. No new evidence or information had come to light since the decision to dismiss the complainant.

5.The Complainant was wrongly accused of changing registered customers email addresses in an aspect of company technology.

6 The Complainants Line Manager was responsible for the Investigation, Disciplinary Hearings and the Dismissal.

7. The Complainant was not presented with all the evidence against him as he was not permitted to listen to the one and only call recording. The screen shots were sent after the January 4, meeting.

Evidence of the Complainant:

The Complainant commenced in the role of At Home advisor in December 2014 and was promoted in March 2015.On November 7, 2016,he was contacted by his line Manager to attend a meeting to address a brief run down on a “ couple of cases “ He was advised that the matter would progress to a Disciplinary Hearing .He sought Union representation by way of a full time Official which was refused by the company .He eventually attended the meeting on 7 December with a colleague. He prepared a document in advance of the meeting, where he flagged:

1. He believed that he had been denied representation by a Trade Union

2 He sought access to three aspects of Technology to conduct his investigation

3 The Calls were not available to be reviewed.

4 Being called to a Disciplinary meeting was unwarranted.

5 His personal life had been affected.

The Complainant denied the allegations.

The meeting lasted 3 hrs and the complainant was accompanied by a work colleague. the Complainant sought screenshots of the support tool used. This arrived two days later. Correspondence followed between the parties which was very difficult for the complainant as he believed that the issues were being predetermined. He attended a follow up meeting with a colleague.

The Complainant felt unable to progress further points and made a conscious decision to save the issue of the screenshots received for the appeal. He attended a meeting where he was dismissed, where a letter had been prepared. He received this letter by registered post.

The Complainant detailed that he had received a verbal warning in March / April 2016 which had expired but felt that he had not been allowed a chance to retrain.

During Cross examination, the complainant confirmed that he was aware of the process surrounding the meetings from November 2016 onwards. He confirmed that he received documents. He submitted that issues had been addressed by the company “more or less” but that all the data had not been considered by the company as the screenshots had not been presented for his evaluation.

He confirmed that he has been given an opportunity to discuss the screen shots at the outcome meeting but he felt that they wouldn’t have been given consideration as they were sent after second disciplinary hearing. He denied that Ms A had given him an option to defer on this as Mr C had been the person who said we can discuss in the outcome meeting.

The Complainant denied that he had asked for the outcome during the Disciplinary hearings. He accepted that Ms A offered to discuss the screenshots.

The Complainant confirmed that he had not lodged an appeal. He confirmed that company policy prohibited changes in records.

The Complainant outlined that he was dismissed for “ mainly editing emails “ felt that his representative had been side-lined in the case and had no role in the Disciplinary process .He confirmed that he was exhausted at the outcome meeting, was not fully listening and had not asked for a lesser sanction .He believed that he was disadvantaged by being denied access to the measuring tool .He confirmed that the setting of the meetings had some bearing on hi participation at meetings as the meeting had been interrupted and this had cause him some embarrassment .

The Complainants Representative argued that the dismissal was unfair and lacked reasonableness. The Respondent deviated from the application of SI 146/2000 when Trade Union Representation was denied. The Union referred to the recent High Court case of Lyons V Longford Westmeath Education and Training Board (2017) IEHC 272 and quoted Eagar J on cross examination in the context of a Disciplinary hearing.

The Union submitted that the complainant had been denied fair and due process. The Respondent did not hold the power to unilaterally change the data as this was the sole prerogative of the customer, 4 of whom contacted the company a 3 did not. The Respondent did not prove that The Respondent had not followed the proper procedures and the dismissal was disproportionate and unreasonable.

I have considered both party’s submissions both oral and written in this case. I have given specific attention to the contract of employment and the company Disciplinary procedures. I did not have the benefit of the At Home Advisors Programme Agreement or an amended contract on promotion referenced in the documents.

The Complainant was dismissed for gross misconduct on 9 January, 2017 in respect of “deliberate falsification of records “

The letter of Dismissal dated January 9, 2017 stated:

“Having reviewed the evidence with you and taking your feedback into account, we believe that you intentionally modified customer email addresses to avoid potential negative surveys”

Section 6(1) of the Act sets out that a dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying dismissal.

Section 6 (6) provides that

It shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in S.6(4).

The Respondent has submitted that the reputation of the Company was intrinsically linked to the successful conducting of customer surveys and the 7 emails where discrepancies and distortions were established permitted their reliance on S. 6(4) of the Act. I acknowledge that the burden of proof in terms of Unfair Dismissal rests squarely on the Respondent and I have sought to look carefully behind both submissions advanced by the parties. It is not for me to determine whether the complainant erred to the level alleged. I must consider the dismissal and decide whether it can be safely considered to be within the “band of reasonableness “I also intend to consider Section 6(7) of the Act in that vein.

I note that the Company Disciplinary Procedure outlines a very comprehensive pathway in seeking to address breaches of company Policy or contractual requirements. The Complainant approached November 2017 on an expired verbal warning in relation to a separate issue.

From the outset, in this case, I noted that the base of the both the Complainant and his Line Manage, Mr C was that of a “Home Base “and the meetings occurred in a notional sense by a “skype type system of communication “I understand that both parties were very conversant with this system of communication, I would have preferred a “face to face “backdrop to provide for optimal communication. The Complainant chose not to seek representation at this early juncture. I note that he had not been represented during his earlier disciplinary issue either.

I appreciate that the Respondent representative submitted that he believed that this case was all about representation. I did not see it quite like that. It was clear from mid-November, 2017 that the Company had triggered the Disciplinary procedure by way of a fact-finding investigation. I have established that the complainant was offered an opportunity to bring a staff member as a representative at this initial stage of proceedings. He did not do so.

The Investigation did not crystallise into a formal Investigation report but moved swiftly to Disciplinary Hearing stage where the issue of representation was first raised. I found the vacuum surrounding an investigation report to be a key omission.

The Company Policy draws a distinction between the roles of Investigation Manager and Disciplinary hearing manager in conduct cases, “where possible “. The Complainant was under the impression that Mr C ran the investigation, the hearings and the decision to dismiss. The Company disputed this and placed Ms A in a presiding role from the Disciplinary hearing stage onwards. The minutes of both Disciplinary hearings record a minor role for Ms A. I accept that Ms A made the decision to dismiss the complainant.

The Complainant raised his preference for a Trade Union Representative prior to the first Disciplinary hearing on December 9. His Union Official stated an intention to appear on his behalf at the Disciplinary hearing, but was refused by the Company. Instead, the Union was informed that representation was permitted at employee level. By this stage, the complainant had not been informed that his conduct was been considered as gross misconduct or even that his job was at risk. Therefore, this case is distinguished from O Halloran and Dunne’s Stores on that key point.

On December 8, 2017, The Union informed the Respondent that the Complainant was pressing ahead with representation by a Peer at the company. I found this to be unusual, precipitous and inconsistent considering the Document dated December 9 subsequently submitted by the complainant at the Disciplinary hearing. Here the complainant alluded to his complete dissatisfaction regarding being denied Trade Union Representation. This caused me to again consult the Policy and I found an interesting paragraph 7.1 “The right to be accompanied “.

The Policy delineated that an employee may choose to be accompanied at a disciplinary hearing by a work colleague or a Trae Union Representative. At first glance, this would seem to align with the Code of Practice on Disciplinary Procedures S.I 146/2000. However, the Respondent distilled this further to explain that a Trade Union representative covered

1.A full time Official party to a Union /Management Agreement

Or

2 A lay official or workplace representative representing a Trade Union with whom the company have a formal agreement with evidence of competence in Disciplinary proceedings.

There was no such Agreement in the business end of the Respondent business. The Policy, dated 8 July 2016 went on to outline:

“Unless there are exceptional circumstances no one else can accompany an employee to a Disciplinary Hearing “

I found it unusual that this clause was not triggered by the complainant given his more than forthright submission lodged with the Respondent on the day of the first Disciplinary hearing. It is my firm belief that the complainant would have benefitted from professional representation. I say this as I found that the complainant displayed a vulnerable and defensive approach from the outset of the Investigative process, which while positively influential on reducing the allegation from 23 cases to a final 7 cases, did not dissipate during the process and culminated in his lack of engagement with the screenshots key to the case at the outset of the outcome meeting.

A professional representative, well versed in procedural frameworks may have been able to navigate the procedures on an objective level and avoid several of the ultimata submitted by the complainant in terms of his impromptu requests for outcomes of the process midway through. I note that the Management Team managed this very well and counselled for an adherence to process.

Exceptional circumstances are set out in Burns, a case of the Supreme Coot involving an allegation of an improper overtime claim in 2006 and whether legal representation should be permitted?

The decision maker should be guided by:

1 Seriousness of the Charge and the potential penalty

2 Whether points of law were at play

3 The capacity of the person to present his own case

4 Procedural difficulties

5 The need for reasonable speed in making the adjudication

6 The need for fairness as between the parties.

The Respondent representative submitted Burns as a balance to the judgement of Eagar J in Lyons, in doing so, he said that Lyons had no application as legal representation did not arise in the case. However, exceptional circumstances were outlined in the context of representation and it is regrettable that this clause was not discussed by the parties. I accept that the Disciplinary procedure formed an integral part of the entire proceedings and I also note Mr B’s evidence on his observations of the strength of the complainant’s own advocacy skills. However, I found that the complainant made several misinterpretations in the procedural framework which caused him to act to his detriment. I appreciate that the complainant may have been fearful and underrepresented, however, some of his verbal and written approaches to the management team were overly confrontational in a Disciplinary setting.

I subsequently found a discrepancy in the composition of Section 7.1 in the Respondent submission and that of the complainant. The Respondent submission which was dated and paginated contained the “exceptional clause “component and it appears to me that the complainant was not aware of this as the Disciplinary Policy is undated and not paginated in the complainant submission. This is a clear anomaly.

I have found that the Respondent was unreasonable in refusing to grant the complainant his preferred choice of representative, particularly in the face of his strenuous denial of the allegations and the provisions of their own policy. However, I also find that the complainant may not have been alerted to maximise the “exceptional circumstances” clause in Section 7.1 of the Disciplinary procedure so as to challenge the refusal in a meaningful way.

I accept that the Respondent had grave concerns regarding the complainants conduct at work. However, there was an obligation to place the complainant on notice that his job was at risk. It is not the same thing that the complainant sought to figure this out for himself. He ought to have been made aware specifically of this fact apart from the generic provision of the handbook where it is just mentioned in the global sense.

I agree with the complainant’s representative that the first the complainant appears to have heard of gross misconduct was at the outcome meeting on January 9. I note that by then the provision for accompaniment had been reduced to “observer status “and the complainant was accompanied by a peer who was not attributed with commentary on the minutes.

The Complainant understood that the Appeal was to the Employee Relations Manager, however, the letter of dismissal clearly said the Employee Relations Team. By right the complainant ought to have exercised an appeal as the last step in the internal procedures. Once again, I found that the underrepresentation may have hindered this but I must still find it a glaring omission on his behalf and I agree with the Respondent Representative in that regard.

I was completely dissatisfied that the screenshots which had been retrieved at the complainant’s request were then cast aside by him at the commencement of the outcome meeting. I was struck by the complainant’s apparent acceptance of his dismissal by saying “cool”.

I have considered the proportionality of the sanction of dismissal in this case. I am not satisfied that sufficient regard was given to alternatives short of dismissal. I found that the narrowing of 23 allegations to 7 allegations ought to have prompted a more open approach to corrective action rather than resort to the nuclear option of dismissal. I found an inconsistency in the measurement tools use to determine the wrongdoing and I could not establish that the respondent had proved wrong doing on the balance of probability. I must accept that the complainants lack of engagement may have hindered this at times i.e. the screenshots.

The Respondent gave the reason for dismissal as encompassing deliberate falsification of records including company records and expense claims. There was no reference to expense claims in the Disciplinary procedure.

I have considered the circumstances of the case. I find that the Respondent relied on a Disciplinary procedure that does not appear to be at one with that relied on by the complainant. The Respondent version was more in keeping with Natural justice and fair procedures on the parameters permitted on representation. The Complainants version was abbreviated on submission.

I do not accept the different rules for separate categories of employees in the Ryan Air case as that referred to the terms of a Trade Dispute. This case concerns an individual rights issue and had grave consequences for the complainant as he lost his job.

I found that the Investigation did not conclude in a tangible report and the lines of demarcation between that process and the disciplinary hearing were therefore blurred and confusing. I found that the complainant was not on sufficient notice that his job was at risk and the latter-day reference to gross misconduct came too late in the process and disadvantaged him. Finally, I have found that the narrowing of issues to 7 cases ought to have triggered a response short of dismissal and rested firmly within the company’s many alternatives to dismissal provided in the staff handbook.

For these reasons, I find that the Respondent cannot safely rely on Section 6(4) of the Act .I find that the complainant has been unfairly dismissed, however, I must also find that he made a 30% contribution to his own downfall. The Complainant found new work on 4 September 2017.

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 complainant was unfairly dismissed while making a 30% contribution to his demise. I find that compensation is the sole appropriate remedy in the case and I award the sum of 8,500 euro in compensation for the unfair dismissal.

As a rider, I would respectfully suggest that the Respondent gives some consideration to having further consultation with Staff Unions and Groupings to agree a uniform system for staff representation during a disciplinary procedure for the genuine benefit of all parties .

Unfair Dismissal