Complainant

Respondent

Anonymised Parties

A Sales Agent

A Financial Services Company

Representatives

Alastair Purdy & Co Solicitors

IBEC

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-00019198-001

15/05/2018

The complainant had been employed by the respondent between January 2013 and April 2018 when his employment was terminated.

He was paid €22,750 per annum

The complainant responded to an email sent by the respondent facilities manager (hereafter ‘FM’) and sent it to some three hundred colleagues employed in that branch of its business (hereafter referred to as the branch).

The respondent regards the email as an attack on the manager and says that it contained ‘derogatory language’ and contained a ‘mocking statement’ about the company bicycle shed.

(The text of the email is below).

The Branch Manager (hereafter ‘BM’ approached the complainant on becoming aware of the email and she sought confirmation from his as to whether he had intended to send it to all employees in the branch. He confirmed that he did. The complainant also told her that he did not think the contents of the email were ‘inappropriate’.

BM then brought the complainant and FM together for a discussion.

In the course of this the complainant apologised.

Some hours later BM invited the complainant to her office and advised that the incident was being treated as a disciplinary matter and that he was being suspended immediately.

On February 22nd an investigation commenced and the complainant attended a meeting the following day. His union representative was in attendance.

The complainant explained the reasoning behind the content of his email, and in respect of one of the issues, car parking said that the facilities manager’s initial email (to which he had responded) was ‘full of waffle’.

He said he had raised these issues previously, including with FM and nothing had been done.

That same day, February 23rd he was invited to attend a disciplinary meeting at which he would be asked to respond to two allegations.

The first was ‘Sending an email which could cause reputational damage or injury through serious negligence to a colleague’.

The second; ‘An act which fundamentally undermines the basis of trust between an individual and their manager, with a clear demonstration of how the trust has been breached’.

The Disciplinary meeting was scheduled for March 2nd, and the invitation to the hearing put the complainant on notice that it could result in dismissal for gross misconduct’.

The meeting actually took place on March 8th and the complainant was represented.

It was carried out by ‘A’, whose witness evidence is below.

In the course of the hearing the complainant stood over the veracity of his comments, that it was proper that they should be brought to the attention of his colleagues who had received the initial email from FM, and stated that he had raised them on previous occasions.

He also confirmed that the email was a misjudgement and that he had never raised the issues formally with FM. He did not think that he was stepping outside normal reporting lines.

After a period of reflection of some hours ‘A’ met the complainant again and communicated his decision.

‘A’ found that the complainant had ‘singled out and belittled a colleague in a public domain which was inconsistent with the right of staff to work in a comfortable work environment. It also created difficulties for the facilities manager in the discharge of his role (The facilities manager did not work normally in the complainant’s branch).

“A’s decision was that the complainant’s employment should be terminated with the payment of one month’s salary.

This was confirmed in writing on March 12th and the complainant given a right of appeal.

The appeal hearing was heard on April 19th and was conducted by ‘B’ (whose evidence is also below).

Again, the complainant was represented and he outlined the grounds of his appeal which were contained in his letter of appeal. This also included prejudicial treatment by the respondent.

The complainant’s conduct was held to be ‘wholly inconsistent with the culture and values of the organisation as well as being serious in terms of their impact on a colleague.

His appeal was not successful and his dismissal confirmed.

The respondent says that it has a comprehensive grievance procedure, of which the complainant was fully aware and which should have been used by the complainant.

The complainant disregarded the correct internal avenues and wrote an email which could be said to have the effect of ‘deprecating a senior manager’. It was described on several occasions as an ‘attack’ on FM.

The dismissal was substantively and procedurally fair.

‘A’, who carried out the disciplinary hearing gave evidence.

He said that it was not acceptable to criticise the failings of a manager before the entire group of those employed in the branch and that the complainant had ‘slandered’ FM. He said that the complainant’s conduct was ‘not aligned with company values’ and that it was fundamentally misaligned’ with the four specific values which form part of the respondent mission statement.

He specified that the specific value which had been offended was the requirement to ‘Care More’. His conduct was inappropriate.

An important factor in reaching his decision was that the complainant had shown no remorse, or seen the ‘error of his ways’.

In cross examination ‘A’ stated that he had no previous HR experience or of conducting disciplinary hearings and that he had not consulted any other person in reaching his decision or writing the letter of dismissal. He had been appointed by the HR Manager on the basis that he was an independent, senior manager who had no connection to the parties.

In response to further questions he had not consulted the company Communications policy nor had he seen the emails which had been sent in support of the complainant.

Neither had he spoken to FM about the case.

He was asked about the role of ‘C’ who was involved in the investigation and also attended the disciplinary hearing. It was put to him that this was a breach of fair procedure. ‘A’ said that ‘C’ attended only to present the conclusions of the investigations as GM could not attend.

As one of the charges related to alleged negligence on the part of the complainant ‘A’ was asked how a deliberate action such as that undertaken by the complainant could be regarded as negligence. He replied that it was the failure to take account of the consequences of the email.

‘A’ was questioned on the components of the email and it was put to him that all of them were true, or were questions or statements. ‘A’ said that they were nonetheless an affront to the dignity of GM.

‘A’ accepted that the circulation of the email to the entire staff in the branch was not the problem, but its contents.

In response to further questions ‘A’ said he fully considered other options short of dismissal.

However, he was influenced by the fact that the complainant had shown no recognition of the impact of his actions and no learning from what happened. Therefore, he considered that here was a material risk of the complainant re-offending.

When it was put to ‘A’ that the complainant had said that he would not do it again he repeated his conclusion that he felt there was a danger he would.

‘A’ was also asked why his findings or the letter of termination contained no reference to the charge of gross misconduct which was what was laid against the complainant. He said that he considered it to be gross misconduct and that this was an omission from the letter.

In response to the suggestion that there was a contradiction between a finding of gross misconduct and the payment of four weeks’ wages the respondent representative stated that this was a good will payment for which the respondent should not be faulted

Witness ‘B’ conducted the appeal.

He said he based his decision on the email being a personal attack on FM. He did not regard the complainant‘s expressions of regret as sufficient.

The complainant’s representative went through the main grounds of the appeal, outlined in the complainant’s letter of March 30th.

It contained a number of requests that ’B’ should take certain steps, some of which related to alleged failures by ‘A’ in the conduct of the disciplinary hearing.

There were seven points in the appeal. A number of these were specific requests to ‘B’ to interview or review material.

The first related to a grievance submitted by the complainant against a senior manager, which he alleged had a bearing on the proceedings against him. ‘B’ said that he did not see any relevance in doing so.

The second concerned the fact that the complainant had previously sent a similar email which never attracted any management attention or disciplinary sanction. He asked that ‘B’ look at this email. ‘B’ said he did not do so.

Thirdly the issues between the complainant and FM were resolved following the apology given to him.

In respect of this ‘B’ says he spoke to FM after the disciplinary hearing but he did not put the outcome of this conversation to the complainant.

Fourthly, the complainant challenged the description of his communication as ‘public’. It was on an internal email governed by a ‘standard Disclosure of confidential information clause, and for staff only.

In respect of another of the issues in his email this had been the subject of previous discussions with FM and GM within the normal line management procedures.

‘B’ stated that he also met GM after the hearing.

Asked whether he accorded weight to the apology given by the complainant and the restatement of his remorse, ‘B’ said he considered it but it did not change his mind.

The complainant’s solicitor put it to ‘B’ that he did not consider any of the points of appeal properly.

He was also asked about the role of ‘C’ who again attended the appeal hearing but ‘B’ stated that this was for the purposes only of presenting the company’s case in the absence of GM.

Asked why the letter communicating his decision made no reference to gross misconduct ‘B’ stated that this was an omission.

In summary the respondent says it conducted a fair procedure.

The two issues which emerged from the investigation findings were consistent throughout and the facts established at that stage had not been disputed.

The disciplinary hearing was conducted by an independent person and the complainant’s rights to notice and representation were fully met.

Dismissal was the appropriate remedy as it was rational to have concerns that the behaviour would be repeated.

Likewise, all rights were observed at the appeal stage. The role of ‘C’ was unexceptionable; as the investigation manager she took the place of GM who was not available and she played no part in the determination of the outcomes.

All issues raised in the appeal letter were fully considered by ‘B’ and the apology offered by the complainant was not sufficient mitigation.

The appeal decision addressed each point of the appeal.

In conclusion, the email sent by the complainant caused distress to FM, and despite the apology and its acceptance disciplinary action was still merited.

In summary the complainant says that he did send the email complained of but that it contains nothing that is not true or fair comment.

The respondent has an ‘Open Communication Policy’ and he was responding to an email that had been circulated to all his co-workers.

He immediately apologised to the person to whom it was sent for any offence that may have been caused and he thought that would be the end of the matter.

The email cannot be considered to be gross misconduct or a justification for the complainant’s dismissal. He raised valid concerns which earned the support off co-workers and at no stage was there any intention to target anyone or cause reputational damage.

The test as to whether the grounds can be seen as gross misconduct is an objective one but must be seen to fall within a ‘band of reasonableness’; in other words what would a reasonable employer have done in the circumstances.

There is nothing in the samples of gross misconduct in the respondent procedures that would justify describing the action of the complainant in that way. It was not ‘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’. Lennon v Bredin M160/1978

When the complainant met the recipient of the email shortly after it was sent he explained his intention and told him that it was in no way personal.

In all cases of unfair dismissal, there are a number of ‘pillars’ to be considered; whether the initial trigger warranted disciplinary action, secondly, the fairness of the procedure and finally the sanction and whether it lies within the range of reasonable options.

The core facts in this case are well set out above.

The first act was the email response from the complainant to an email by the respondent’s Facilities Manager (FM).

It contained a number of gripes, primarily about facilities for car parking, but as the complainant warmed to his task he addressed problems related to mugs for drinking tea or coffee, facilities for smokers and the state of the bike shed. The latter, apparently a drinking haunt was described as a ‘Cathedral to Buckfast’.

The specific reference to the FM contained an allegation that for the past two years ..the problems have not been addressed and indeed have become worse during your tenure’.

The tone was somewhat sarcastic and the complainant subsequently accepted, although to no avail, that it represented poor judgment on his part. He told the Disciplinary Hearing that it represented a ‘misjudgement’ on his part. He told the Appeal Hearing that he would not act in the same way in respect of any future grievance.

It was a possibility that this would bring brought the complainant within the purview of the disciplinary process.

Ultimately however, it became not only a matter of gross misconduct but something that was variously described as ‘fundamentally misaligned with company values’ (in evidence by ‘A’ to the hearing’, and as ‘wholly inconsistent with the culture and values of the company’ (in the respondent’s written submission).

This escalation was a rapid one.

Immediately following the event the Branch Manager met the complainant and advised him to have a word with the FM. The complainant says she told him the matter was closed.

This appears to have been reviewed at management level and on February 23rd the complainant was invited to attend a disciplinary meeting at which he would be asked to respond to two allegations.

The first was ‘Sending an email which could cause reputational damage or injury through serious negligence to a colleague’.

The second was; ‘An act which fundamentally undermines the basis of trust between an individual and their manager, with a clear demonstration of how the trust has been breached’.

The Disciplinary meeting was scheduled for March 2nd, and the invitation to the hearing put the complainant on notice that it could result in dismissal for ‘gross misconduct’.

In his cross examination the complainant’s solicitor initially sought to establish what act of serious negligence had occurred. None was identified. A more likely explanation for its inclusion was a desire to bring the earlier part of this sentence; the causing of reputational damage etc’ in the formulation of the charge. It seems probable that the requirement that this be a result of serious negligence was overlooked.

In any event neither serious negligence nor reputational damage or injury was established.

In respect of the second of the charges; the fundamental undermining of the basis of trust between an individual and their manager the evidence was scant. The complainant’s case was that the FM was a good deal less bothered about the incident than others in the company. In any case, the language in the charge is specific; it states that the breach of trust must be between the individual and their manager. (Underlining added) FM was no the complainant’s manager.

A further point was raised by the respondent which related to the failure of the complainant to avail of the company grievance machinery in relation to any of the matters in his email. He had previously availed of those procedures.

The text of the email was described as an ‘attack’ on the recipient, and which had the effect of deprecating him. In the Appeal outcome letter this has become a ‘personal attack’, although the comments clearly related to the performance of his work for the company; there was no element of a personal nature in the comments.

The email was, in retrospect an unfortunate error of judgement and accepted as such by the complainant.

So, to summarise, regarding the charges laid before the complainant ‘Sending an email which could cause reputational damage or injury through serious negligence to a colleague’ and ‘An act which fundamentally undermines the basis of trust between an individual and their manager, with a clear demonstration of how the trust has been breached’ “A’ did not make any specific finding on these points.

He stated that the dismissal resulted because, by ‘sending this email you singled out and belittled the performance of a staff member in the public domain’ and that it ‘caused significant anguish to that member of staff’.

Critically, he did not say how these conclusions, even if they were true, constituted gross misconduct, by reference to the charges to which the complainant was responding; in fact he makes no finding of gross misconduct at all and could not justify under cross examination how the email incident fell under the two points particularised above.

On the question of the anguish and embarrassment to the FM there was no evidence at the hearing to support any of the alleged impacts on the FM. There seems to have been none at the disciplinary stages either.

The respondent appears to have assumed some vicarious sense of offence on behalf of the FM for which nothing resembling evidence was advanced. It was not disputed that the points made in the complainant’s email were all true, and perhaps part of a facilities manager’s role is to endure occasional criticism about inadequate facilities. While it is easy to imagine circumstances where this could be done in a disrespectful way, the burden of proof of showing that it has will not be met simply by hyperbole or indignant expressions of disapproval.

It is also highly questionable whether a third party may initiate proceedings under Dignity at Work procedures, or assume unto itself a grievance on behalf of another.

The respondent’s policy contains a provision that where there is a case of harassment to answer (which would be relevant in the current case) the disciplinary procedure will then be followed. Common sense, best practise and this provision in the respondent’s procedures would suggest that this would be the normal sequence of events; a complaint, investigation and finding, and disciplinary action. The corollary is that absent a complaint a third party will have difficulty in triggering the process.

So, even if it was true that the FM did harbour feelings of embarrassment or worse this still leaves open the question as to whether the complainant’s actions represented gross misconduct. There was no alignment between the original charges as specified and the conclusions reached by ‘A’ most notably in respect of a finding of gross misconduct. (The same applies to the appeal).

Thirdly, there is the general area of offending the company’s values

The reliance on the complainant’s alleged breach of some wider code of conduct or statement of company values, and some generalised ‘inappropriate’ conduct was a constant theme throughout the hearing.

In fact, what the complainant was told at the outcome meeting was that the company value which had been breached was the right of the FM ‘to dignity and respect at work, and the right to come to work and give your best without fear of being belittled or embarrassed for any perceived shortcomings in your performance’.

I repeat the point made earlier that there was absolutely no evidence that the FM was in fear of being belittled or embarrassed or had felt that his right to dignity at work had been adversely affected.

In his evidence the disciplinary decision maker, ‘A’, said that he concluded that there was ‘a fundamental misalignment’ with the company’s values represented by the sending of the email; specifically, that value which requires the company’s employees to ‘care more’. This is a reference to one of the four values in the company Mission Statement, which are similar in their general nature.

Such statements normally contain relatively meaningless clichés aimed at projecting positive images for employees and customers.

In the respondent’s case they are extremely vague. There are four and I cannot quote them as it might tend to identify the respondent, but it is necessary to refer below to the one which the complainant allegedly broke.

They become quite a different matter when an attempt is made to introduce them into the assessment of an employee’s conduct for the purposes of disciplinary action and when they give rise to a parallel system of jeopardy for employees.

In such an event, they must be capable of being rendered with precision and clarity in such a way that an employee’s conduct, properly on notice of the expectations placed on him, can be fairly assessed. They must be brought beyond mere injunctions to be virtuous.

In this case, the decision maker when pressed by the complainant as to which of the principles in the Mission Statement had been offended offered the requirement to ‘Care More’ as an answer.

A company which believes it may terminate a person’s employment, or discipline them in any way because he has failed ‘to care’ sufficiently is, to put it no more strongly, entering very hazardous territory. This is especially the case where, as it appears here, having failed to shoehorn the conduct it wished to designate as gross misconduct into one of the sample categories, this more generalised form of misconduct is relied on, if such it can be called.

The day has not yet been reached where designating the sending of a mildly critical, if ill-judged email a ‘misalignment with company values’ or its culture will on its own justify the termination of a person’s employment.

In fact, what the complainant was told after the hearing (above) was not that he breached some undefinable company value but that he breached the company Dignity at Work policy in respect of the FM, who unfortunately for this line of argument had not made a formal complaint to that effect.

Much was made of the complainant’s lack of remorse about having sent the email and the possibility that he might do something similar again. ‘A’ seemed to regard this lack of remorse as a critical factor in his decision despite the complainant having told him explicitly that he would not do the same again.

In the first place the complainant did not believe he had done very much that was wrong and it is hard to disagree with him. He stood over his criticism that the email to which he was responding was ‘waffle’. If that was his view he could hardly recant. He could be sorry for sending it, but if he believed it to be fair comment there are limits to the remorse he can show, especially as he could not have been aware of what degree of remorse was expected.

Secondly, as noted above, as the complainant had made it explicitly clear at the initial disciplinary hearing that he would not do so again the primary responsibility of the company to ensure that conduct it regards as unacceptable should not recur had been achieved, regardless of the degree of remorse expressed by the complainant. If he had shown that understood that his conduct was unacceptable to the point that it should not be repeated, then any further expressions of remorse became redundant.

A related issue therefore is whether the failure to express remorse is a relevant consideration in determining the appropriate level of sanction. There may be circumstances in which it will be; but this is not one of them given the commitments made by the complainant.

The respondent, specifically ‘A’ in the first instance ought to have dealt with the alleged misconduct on its merits.

In summary, regarding the first allegation against the complainant, this has been totally erroneously selected. There was no allegation of serious negligence against the complainant. All that is left is sending an email. There was no evidence even of reputational damage or injury.

The second is the fundamental undermining of trust between an individual and their manager.

The FM was not the complainant’s manager. There was no evidence as to how any relationship between them had been affected. The complainant thought that issues between them had been resolved. This charge was fundamentally misconceived.

There was no evidence of any complaint by FM against the complainant. Neither was there any evidence that the FM felt belittled, embarrassed, attacked or uncomfortable about coming to work, or that there was any reason he should.

This was little more than a fabrication by the respondent to bolster its case against the complainant.

‘A” made no connections between his conclusions, the original allegations and a finding of gross misconduct; as previously observed he made no finding of gross misconduct.

‘A’ stated in evidence that he had no previous experience of carrying out a disciplinary hearing.

He appeared to have no understanding of the principles of fair procedure and adjudication which ought to apply in such hearings.

His resort at the hearing to the ‘misalignment with company values’ argument smacked of unreality and desperation in the face of his failure to deal with the simple points that were before him; had the complainant’s conduct been in breach of the specific points with which he had been charged, or even some other standard of gross misconduct, and was there evidence to support it.

He also had an obligation to fairly consider the complainant’s submission notably in respect of his commitment not to repeat the conduct. Not only did he not do so, he ignored it.

There was much about the inadequacy of the complainant’s remorse; ‘A’ stated in evidence that he did not regard the complainant‘s expressions of regret as sufficient.

Leaving aside the uncertainty over what precise degree of remorse ‘A’ would have found acceptable, the complainant had gone beyond expressions of regret and had stated clearly that he would not do the same again if a similar situation arose in the future.

On these facts, inadequate remorse (taken with the other criticisms of the process) represents an insufficient basis for a decision to terminate employment, especially it was a conclusion reached in defiance of the complainant’s submissions and commitments.

Perhaps not surprisingly then, both decision makers ‘A’ and ‘B’ neglected (one described it as ‘an omission’) to refer to the charge of gross misconduct in the outcome letters. In other words, no finding of gross misconduct was recorded against the complainant despite the fact that this was the charge he was answering.

This is not merely ‘an omission’; it is a fundamental error of unfairness to the complainant, especially taken with the lack of a finding on the actual charges against the complainant. If the allegations he was charged with were not upheld then they should have been dismissed.

This continued at the Appeal. The outcome letter stated;

‘[The complainant’s] method of escalating concerns about the office environment was considered to be wholly inconsistent with the culture and values of the company, as well as being very serious in terms of their impact on a colleague’.

This is extraordinary language in which a failure to follow the company grievance procedure is regarded as ‘wholly inconsistent with the culture and values of the company’ to the point where it is relied on to justify terminating a person’s employment.

This also concluded that the email had caused ‘maximum embarrassment and upset to a colleague’.

Yet again, there was no evidence that it had, or where on the scale of embarrassment ‘maximum embarrassment’ might lie. This has the appearance of someone who wishes to leave nothing to chance in delivering a desired outcome, regardless of whether the words used are connected to any meaningful concepts or evidence. Thus, embarrassment must be maximum.

In addition, ‘B’ who heard the appeal appears to have ignored the submission by the complainant on the critical of the complainant’s regret. This formed part of the basis for ‘A’s decision. The complainant had apologised and resolved (he thought) the matter with the FM and stated, ‘My acknowledgement of wrong-doing and apology are real and any contention that my remorse is not real is unsubstantial’.

This is not dealt with at all in ‘B’s findings and is, again a serious oversight.

The formulation of the charges against the complainant and the conduct of the internal hearings make it hard to avoid the conclusion that the respondent set out, from the beginning to terminate the complainant’s employment at all costs. The evidence for this is as follows;

The elevation of the episode into an offence of gross misconduct displays a staggering lack of insight and proportion.

There is nothing in the company’s sample list of indiscretions representing gross misconduct that could be remotely comparable to the complainant’s conduct. The selection of the charges was misconceived and totally unrelated to the complainant’s action.

It was accepted by ‘A’ in evidence that it was not the sending of the email that was the problem but its content. The content was ill considered but any concerns about a repetition (about which the complainant had given commitments) could have been addressed with a lesser sanction. The main issue with it seemed to be that it should have been processed through the grievance machinery.

The contents of the email have been elevated to the level of ‘an attack’ or, later as perhaps a mere attack was insufficient, ‘a personal attack’ on the FM. The suggestion that they were ‘very serious in terms of their impact on a colleague’ must be assessed by reference to the fact that, as noted above the FM made no complaint to this effect, and no evidence was adduced to support it. This is of a piece with the hyperbole and exaggeration which have characterised the respondent’s case.

I dismiss the sententious ‘misalignment with company values’ and related core values arguments as a justification. A person’s conduct may not, especially retrospectively be measured against such a vague and meaningless yardstick, leaving aside the rather important point that he was never at any stage charged with such an offence.

I fully take into account the jurisprudence represented by the Looney v Looney line of authority to the effect that an Adjudicator may not substitute their judgement for that made in the workplace.

This is subject to the sanction falling ‘within the range of reasonable responses’ and the procedure being fair.

A termination of employment on the basis of the facts in this case falls so far outside the range of reasonable responses as to be unrecognisable. It is an unfair dismissal that represents an egregious breach of the Act.

The misconduct alleged cannot remotely be considered to fall within the categories of gross misconduct specifically those with which the complainant was charged, but more generally; the ‘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’ referred to in the complainant’s submission.

It was a minor breach that would normally be dealt with by means of a warning of some sort.

The failure of both ‘A’ and ‘B’ to properly consider the complainant’s case justly and on its merits instead of the various ‘misalignment of company values’ and breaches of company culture arguments rob it of any protection (on these facts) afforded by the Looney v Looney principles.

The alleged embarrassment of, or other impacts on the FM were no more than contrivances to provide leverage against the complainant.

The restraint imposed by those principles is on substitution of the Adjudicator’s view for the employer’s view.

But in answer to the question posed in that case; ‘was it reasonably open to the [company] to make the decision it made.’ I respond very firmly in the negative.

The lack of insight, sense of proportion, fairness and justice, and the detachment from the normal principles applicable in a disciplinary process represented by the respondent’s approach to, and handling of the matter place it outside these parameters of reasonableness.

The decisions of the decision makers at the disciplinary and appeals stages were perverse and unfair and ignored key submissions by the complainant.

The dismissal is unfair.

In making my award I take into account the complainant’s age (late fifties) and the difficulty he is experiencing finding employment. I am satisfied that he has been diligent in seeking new employment.

I uphold complaint CA-00019198-001 and award the complainant €35,000.00 subject to normal statutory deductions.