Complainant

Respondent

Anonymised Parties

A Butcher

A Supermarket

Representatives

Cathy McGrady B.L instructed by Ebrill Solicitors

Tom Smyth & Associates, Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00016686-001

09/01/2018

The complainant commenced with the respondent in January 2010 and was employed as a butcher on a wage of €463.71 per week.

His employment was terminated on November 10th 2017 following an incident involving a young female co-worker (hereafter ‘C’).

The allegation giving rise to the disciplinary action was that the respondent had touched a fifteen year old co-worker on the lower back, but where her skin was exposed.

She complained and statements were taken from her and from a witness.

This was followed by two investigation meetings at which the complainant was represented by his solicitor.

The investigation was into allegations of serious misconduct and sexual harassment, specifically that he had touched her ‘inappropriately’.

The complainant was suspended during the investigation which was carried out by the shop owner (“A”).

The investigation concluded that disciplinary proceedings were justified, and the notice to the complainant included a warning that the sanction could include dismissal, given its seriousness.

The meeting took place on November 6th, 2017 and by letter of November 10th the complainant was dismissed by the shop manager (‘B’).

An appeal was provided to an independent third party neutral and the complainant did appeal through his solicitor on November 16th.

The third-party neutral upheld the decision to terminate the employment.

In conclusion the respondent says that a fair procedure was followed and the decision was that there had been sexual content in the complainant’s actions and sexual intent based on the part of the body which had been touched, the information regarding the process had been shared with the complainant at all stages and he had been legally represented.

Accordingly, the dismissal was fair.

The complainant accepts that he momentarily touched his co-worker on her bare back with the back of his hand which was cold from working at the butcher’s counter. It was intended as a friendly act and contained no sexual intent.

When he learned that she had been upset by it he was shocked and distressed and immediately offered to apologise to her.

He was given C’s statement of complaint, and that of a witness on October 24th and he attended an investigation meeting on October 26th.

It appears that the matter was then ‘handed over’ to the shop owner and the complainant was invited to a disciplinary hearing. (Around this time twenty-four of his colleagues signed a letter of support for him.)

The complainant says that the reason given to suspend him was manifestly irrational, as it was purportedly done ‘to ensure no similar behaviour occurs during the investigation’.

The suspension was an indication that dismissal had been already decided as the sanction at an early stage.

It is also of note that the complaint made by A had been changed by the respondent to one that the complainant had ‘touched A inappropriately’.

The characterisation of the incident as ‘sexual harassment’ is wrong.

The definition of sexual harassment in Section 14A of the Employment Equality Act includes a reference to a range of unwanted conduct ‘of a sexual nature’. There is no evidence that the act was of a sexual nature.

In addition, it must have had the purpose or effect of ‘violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person’.

The complainant says that the act complained of fails to meet any of these criteria.

In addition, the reason given for the complainant’s eventual dismissal was gross misconduct, which is not a finding permitted under the respondent‘s disciplinary procedures. It is neither referred to nor defined in the Staff Handbook.

The complainant relied on the definition of gross misconduct in DHL Express (Ireland) Ltd v Michael Collins UDD 1738 where the Labour Court followed the decision in Lennon v Bredin M160/1978 and which required;

‘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 also says that the failure to allow cross examination of the alleged victim of the incident, or the witness represents a breach of fair procedures on the basis of the decision in Lyons v Longford-Westmeath ETB [2017] IEHC] 272 and EG v The Society of Actuaries in Ireland [2017] IEHC 392.

These cases are authorities for a constitutional right to cross examine witnesses where dismissal is a possible outcome (as was the case here).

On the basis of the above facts there were no ‘substantial grounds’ justifying the dismissal. There had been no pattern of previous incidents, no sinister motive or conduct of a sexual nature and a warning would have been sufficient to ensure no repetition of the incident.

Finally, the respondent had no regard to mitigating factors such as the complainant’s cooperation, his attempted apology, and the fact that the incident took place in open view.

The complainant accepts that the action was unwise but innocent, and the complainant’s unblemished record as evidenced by the support of his colleagues is evidence of his general good conduct in this regard.

I have considered all the relevant evidence that was laid before me, both before and in the course of the hearing.

The onus under the Act falls on the employer to justify the dismissal.

There are three ‘pillars’ which guide the adjudicator to a decision in a complaint of unfair dismissal.

In order for a dismissal to be fair there must be some significant grounds to support disciplinary proceedings or other actions against the employee and which are related to performance or conduct.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee or other parties affected, and to ensure that justice is done.

These are not particularly onerous requirements and are generally well understood. They are referred to by such terms as fair procedure and natural, or constitutional justice.

Many, if not most cases are argued on the basis of the key facts not being in dispute and the outcome will often turn on how well the procedures were carried out.

Then, finally, there is the matter of sanction which must fall within what is described as a range of reasonable responses by the employer.

Reference is often made to the EAT decision in Looney and Co v Looney UD843/1984 and the view of Dr Mary Redmond (and other authorities) to the same effect that;

‘It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

More recently in Allied Irish Banks plc v Purcell [2012] 23 ELR 189 the Circuit Court decided per Linnane as follows:

The correct test is: was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably another view’.

As will be clear from the text this does not entirely rule out intervention by an Adjudicator but sets the standard to be applied as the actions of ‘what a reasonable employer in his position and circumstances at that time would have done…’

The facts in this case, and the central incident giving rise to the disciplinary proceedings are not in dispute.

What was involved was an interaction between a male and a female colleague in which it is accepted that he placed his hand on a part of her lower back which was exposed.

He is a man in his sixties and she is fifteen.

Looking at the first of the three pillars above these facts certainly represented grounds to initiate disciplinary proceedings.

In light of the ‘Me Too’ movement in particular, but in general there is a heightened and entirely justified awareness about such interactions, and in particular a strong sense that any tolerance shown in the past towards such conduct is no longer acceptable, and certainly not on the basis only that they were ‘a joke’, or ‘a prank’.

Accordingly, the respondent was well justified in initiating disciplinary proceedings.

There was criticism by the complainant’s representative of the lack of ‘clear water’ between the conduct of the investigation and the ‘handing over’ to the disciplinary stage. There was indeed some confusion about this, and a degree of overlap, which even allowing for the difficulties arising in a small owner-managed business gives rise for concern.

The investigation meeting took place on October 26th and was conducted by the shop owner; ‘A’.

The complainant attended and was represented by his solicitor.

The allegation being investigated was that the complainant;

‘approached her from behind and touched her inappropriately as [he] went by.

C had referred in her statement to the incident as follows;

I felt someone rubbing my back over my pants where my top had come up’

The letter of November 1st, 2017 from the Shop Manager outlining the conclusion of the investigation and advising of the disciplinary proceedings was headed ‘Disciplinary meeting; Breach of Disciplinary Procedure-Serious Misconduct’.

The complainant was advised that this could be followed by disciplinary action ‘up to and including dismissal’.

Following an exchange of correspondence about the minutes, the Decision Maker in the disciplinary process issued his decision terminating the complainant’s employment and finding the;

‘actions on Wednesday, October 13th last where you touched [C], a minor inappropriately constitute gross misconduct’

He was offered an appeal to an external consultant and he did so on November 16th.

Before the appeal hearing the complainant submitted further grounds of appeal on November 23rd.

The hearing took place on November 29th and there were delays in issuing the findings as correspondence continued about the possibility of cross examining C and the original investigator.

The decision eventually issued on January 2nd, 2018.

Working backwards, the Report of the Appeal Decision Maker lists eleven grounds of appeal, and nine counter arguments on behalf of the current respondent.

Regrettably, the findings in the appeal fail to address any of the main grounds of appeal.

These grounds were (with some amalgamation of original);

The complainant was not guilty of gross misconduct and no such offence is listed in the company handbook.

There were procedural defects in the internal disciplinary process, including the failure to allow the complainant to cross examine.

The complainant’s account of the incident was borne out by the investigation and the CCTV and was more accurate than either that given by C or the witness. In particular it confirmed the true nature of the contact between the current complainant and the young woman.

The action complained of could not be properly considered to be sexual harassment as there was nothing sexual in the action complained of.

No weight was attached to the complainant’s immediate expression of remorse and offer to apologise to C, in circumstances of her choosing.

These and related arguments were submitted in writing on a number of occasions and they are summarised on the Decision Maker’s report of the Appeal.

That decision has fifteen points. Nine of these relate to the narrative of factual events (1-9) leading up to the appeal. Two refer simply as matters of record to the fact that, at the appeal, the complainant’s solicitor set out his case that the dismissal was unfair and the fact that he was not allowed to cross examine the parties.

Point 12 notes that C’s parents refused permission for her to be cross examined and point 15 states that he reviewed the CCTV evidence.                    

Only points 13 and 14 address the any aspect of grounds of the appeal, and even then, inadequately.  

The first (point 13) is a finding that;

‘while the employee stated that there was no sexual intent by his actions nevertheless its is [sic] the feelings of the intended victim that is accepted.’    

Related to this (point 14) he finds;

‘that the issue of sexual harassment is deemed to be only one incident, where as [sic] harassment could mean a number of incidents’.

He concludes by finding ‘that in the circumstances the dismissal is fair and the appeal is not upheld’.

Frankly, not one of the grounds of appeal has been addressed here and no reasons are given for the overall conclusions.

Even point 13 appears to ignore the complainant’s submission that in order for a finding of sexual harassment there must have been interaction ‘of a sexual nature’.

It is true that there is a subjective test in relation to sexual harassment, which is what point 13 seems to be referring to, but only when the harassment complained of is ‘of a sexual nature’.

This effectively affirmed the decision at the disciplinary level to terminate the complainant’s employment.

Stepping back to look at the internal process there are some serious grounds for concern about the procedure.

The complainant referred to the lack of clear water between the investigation and disciplinary process and the handover between the two.

As noted earlier there are some difficulties in a small business in this regard.

On the facts in this case, that aspect of the matter may be less significant than some of the other issues which arise; notably the migration of the charge against the complainant to one of ‘gross misconduct’

He was not ‘charged’ with gross misconduct at any stage. In fact, the letter inviting him to the disciplinary hearing on November 1st was headed ‘Serious Misconduct’.

More significantly there was no reference at that stage to any conduct ‘of a sexual nature’, the letter merely refers in a more neutral way to touching C ‘inappropriately when passing her by’, although the respondent stated in evidence to the hearing that to be the reason for the dismissal.

The somewhat imprecise and overused word ‘inappropriately’ could mean one of two things here.

The first carries a general meaning that any touching by one person of another in the workplace, or at least of those who do not wish to be touched, might be regarded as unacceptable.

The other is where touching is always wrong in itself and in its nature; i.e. that it involved touching a part of the body which is private or sexual in nature.

I have reviewed the CCTV footage.

The actions of the complainant seem to me to fall into the former of these categories; the complainant accepts this i.e. that he should not have touched her at all on any part of her body. (C was the second person the complainant touched within a few seconds of his passage down the aisle).

There may be a view that the actual site of the touching aggravates the action somewhat. But could a reasonable person form a view that it was a touching of a ‘sexual nature’.

I set out again the complainant’s submission on the definition of ‘gross misconduct’;

‘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’.

In the letter of termination to the complainant (November 10th, 2017) the finding was based on his actions ‘on Wednesday October 18th last whereby you touched [C], a minor, inappropriately constitute gross misconduct’.

The inference here is that the essential nature of the touching was ‘inappropriate’ (i.e. on an inappropriate part of the body or manner) and brings a person’s back into this category, although bearing in mind that it was exposed.

The CCTV evidence played at the hearing shows exactly what happened.

It a casts very serious doubt on C’s original statement in her complaint that she was ‘rubbed’.

There is no evidence on the footage that there was anything more than a brief touch, consistent with the complainant’s evidence.

The complainant argued that this should have been tested by cross examination at the investigation stage, but it could also just as easily have been established at the investigation stage by more diligent inquiry by the respondent.

No report of the investigation was produced and the complainant was not questioned on this aspect of the matter in the course of his investigation interview. There was no report of any interview with C either.

Touching a minor (or any co-worker) may be inappropriate depending on the circumstances, and on these specific facts it was but it is not gross misconduct unless the lower back is now within the territory of a sexual part of the body and a passing touch is an act of a sexual nature.

C’s immediate response to being touched by the complainant, according to her statement, was to say ‘Oh, hello’, to the complainant. Her witness, somewhat at odds with this, had described her as being ‘very shocked’ after the incident’.)

It is easy to understand the respondent’s concerns given C’s age, her presence in the shop on work experience, and the implications for its business of versions, perhaps inaccurate or exaggerated, of what happened beginning to circulate in the local community.

However, any such sensitivities must be applied proportionately and not in such a way as they diminish the constitutional rights of a person charged with a disciplinary offence to fair procedure.

In this case those initial procedures were not carried out to a good standard; there was an investigation, but if C was interviewed the complainant did not see any report of that interview or any attempts by the respondent to get clarity on the precise nature of the touching/rubbing which was alleged. No report of the investigation was produced; it was simply ‘handed over’ for disciplinary action.

Further serious questions must be asked about the conclusions reached at the disciplinary outcome stage. The sudden arrival on the scene of a conclusion of gross misconduct was not just a novel development, but was perverse having regard to the evidence.

The conduct, prima facie, fell easily within the area of serious misconduct (which might also have led to a termination, but could also have allowed for lesser sanctions) but he had never been charged with gross misconduct which always, or normally carries with it the sanction of termination.

In addition, having granted a right of appeal, that part of the process fell very short of a proper appeal. There is no evidence of any consideration being given to the complainant’s stated grounds of appeal or any statement of the reasons why they were rejected in reaching a conclusion that the dismissal was fair. The appeal process fell well short of the required standard.

As noted above, the reference in the appeal findings to sexual harassment appeared to miss the point being made by the complainant that there must initially have been an action ‘of a sexual nature’ before moving to a conclusion that it represented harassment. The appeal decision maker provided no indication that he even considered this, or indeed any of the grounds of appeal, before dismissing them.

In summary, regarding the second of the two pillars referred to above; first, the entitlement of the complainant to a fair procedure, in my view, the flaws in the disciplinary process as set out above are too numerous to overlook and, taken on their own, render the process and therefore the dismissal unfair.

I am also inclined to the view that the respondent’s actions and decisions fail the Looney v Looney and Purcell tests, the former of which is restated for convenience.

Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’

In my opinion, the respondent’s actions fall outside the parameters of what might be expected from the ‘reasonable employer’ and may have represented an overreaction based on possible reputational damage to his business, and the need to ‘make an example’ of the complainant, especially as the incident could so easily have been misrepresented as being more serious than its facts merited.

For all these reasons; in respect of the flaws in the process and on any measured and detached view of the facts of the matter I find the dismissal was unfair.

In making my award I take account of the complainant’s age and probable difficulty in securing employment, and have taken full account of his efforts at mitigating his losses.

For the reasons set out above I uphold complaint CA-00016686-001 and award the complainant one year’s salary (approximately) in the amount of €24,000.00

Unfair dismissal.