Complainant

Respondent

Anonymised Parties

A Customer Service Support

A Technology Company

Representatives

Employee Relations Manager

Terence O Sullivan, Solicitor.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00025006-001

14/01/2019

On 14 January 2019 the Complainant, a French national submitted a claim of Unfair Dismissal against his Employer of over 9 years. At that time, he presented as a lay Litigant. On 11 February 2019, the Respondent raised the issue of time limits in respect of the date of dismissal of 19 June 2018. They submitted that the complaint was out of time.

The Respondent followed with a comprehensive written submission in March 2019. A Hearing took place in the case on 11 July 2019.

The Respondent went on to raise two further preliminary issues at hearing.

Shortly before the hearing, the Complainant elected to be represented by a Solicitor and made a written submission at hearing. The Complainant that the complaint was in time, having regard for the date of dismissal and advanced an argument in support of granting an extension of time through reasonable cause.

The Respondent was represented by the Employee Relations Manager at the Respondent company and the Complainant by Terence O Sullivan, Solicitor.

The respondent is a large Technology Company which employs more than 5,000 people across three locations.

Preliminary Arguments:

The Respondent submitted a Preliminary argument that the complaint of Unfair Dismissal should not be entertained at Adjudication as it had not been made within the period of 6 months beginning with the date of dismissal as set down in Section 1 and 8(2) of the Act. The Respondent submitted that the Complainant was dismissed summarily for gross misconduct in accordance with the terms of his contract of employment on 19 June 2018. By submitting his complaint on 14 January 2019, time had passed to more than 6 months and 27 days after the date of dismissal.

The Respondent elected to pay the complainant 4 weeks’ pay. The Respondent contended that the complainant had not advanced a submission where he sought an extension on reasonable cause grounds prior to the hearing. The Respondent, in relying on Mc Donald’s Restaurants of Ireland plc and Mary Comerford (DWT 1628) and The Labour Court in Cementation Skanska ltd V Tom Carroll (DWT 0338) concluded by denying any grounds to justify an extension of time.

The Respondent had not received any proof of a loss of earnings and submitted that if an unfair dismissal was found in the case, consideration had to be given to this vacuum and the past payment of 4 weeks salary on conclusion of employment.

Substantive Case:

It was the Respondent case that the complainant was dismissed fairly and lawfully following a disciplinary process which found that he had manipulated customer records in breach of the Respondent policies.

The Respondent outlined the response to the claim on behalf of the company. They submitted that the complainant was made aware of policies and procedures governing his employment on commencement of his employment. Accuracy of records and reportage were deemed important. The Complainant undertook annual training in Business Conduct, most recently in April 2017.

The Complainant was dismissed for manipulating customer records, specifically email addresses in breach of company policies.

“…. Never misstate facts, omit critical information or modify records or reports in any way to mislead others, and never assist others in doing so ….”

The Respondent relies on a named metric A as customer feedback surveys to measure their experience. This is used to measure company success and as a benchmark for comparing performance both internally and externally / The metric is also linked to employee’s performance reviews and compensation. The metric is a central part of the Respondent business model.

The Respondent received “peer feedback “from a colleague of the complainants alleging that the complainant may have modified the record of customer email addresses in the system. This information was directed at the complainants Manager, Mr M.

On 30 April 2018, the complainant was invited to attend an investigation meeting on May 1, 2018. The Complainant was alleged to have made 37 modifications to customer emails, with a more detailed focus on 10 of the associated customer calls. The Complainant failed to attend on this date and the meeting eventually took place on 8 June 2018 and was conducted by the Complainants Manager. The Complainant was accompanied by a work colleague who professed that the notes reflected the discussions. The Complainant disputed this and submitted his own recollections dated June 11, 2018.

The Investigation concluded that the complainant had a case to answer at Disciplinary stage and Mr M forwarded the matter to Ms A, area Manager to arrange the next steps.

The Respondent invited the complainant to attend a Disciplinary Hearing set for 11 June 2018. The Complainant was placed on notice of the allegations against him and permitted to be accompanied by a staff member. He was informed that disciplinary action may follow inclusive of dismissal. The Complainant requested that he be permitted to record the disciplinary hearing and have more than one witness at his side.

The Respondent was concerned and agreed to conduct the Disciplinary process in writing, where the complainant was asked to provide a written submission in response to the allegations. This was provided but failed to address the questions asked.

Ms A considered the representations raised and concluded that the complainant had deliberately altered the relevant customer emails in breach of policy and that his actions amounted to gross misconduct.

The Complainant met with the Company on 19 June 2018 where he was informed that his actions were deemed to constitute gross misconduct and dismissal was deemed the proportionate response. He was paid 4 weeks in lieu of notice. The Complainant submitted an appeal of the decision which was heard by Ms B, a UK Employee Relations Representative, the decision to dismiss was upheld.

The Respondent contended that the decision to dismiss the complainant resulted wholly or mainly from the conduct of the complainant. There were substantial grounds justifying his dismissal. The Respondent could not countenance a reinstatement.

Evidence of Mr A, Team Manager and Investigator

Mr A submitted that the complainant had received three invitations to investigation prior to June 8. The Unique identifier had linked the actions to the complainant and this was not something that could be safely addressed under performance reviews.

What had commenced as a peer feedback then mushroomed.

The Respondent had not taken any protective measures on the complainants work during the investigation. The Complainant was invited to submit his response and was given a deadline of June 9. Mr A could not remember if he honoured this time line.

Mr A outlined a certain frustration in seeking the complainant’s engagement at Investigation. The Respondent had taken the matter of email alteration very seriously. The Complainant was invited to record his response to the claims of alteration of records and was notified on 8 June of

“…. We deem this breach of policy very serious, it can be considered gross misconduct. We are giving you a final opportunity to give your input “

During cross examination, he confirmed that the complainant had not made a request for audio recorded calls. He requested to record the investigation meeting. He had constant access to the log records and this was enough for him to assemble a response to the allegations.

The Complainant did not participate in the investigation.

Evidence of Ms A, Area Manager (Disciplinary Manager)

Ms A outlined that she was an Area Manager. She understood that a 90-day review had provided information on changed customer email addresses. These resulted in altered identifiers. In a summary of 10 instances, it demonstrated that a poor customer experience may be overlooked. While it did not cause a disturbance in company revenue it harmed the company’s trading reputation as the customer was not provided with an opportunity to feedback.

Ms A confirmed that she had not engaged in the investigation, but was aware that despite 4 invitations, the complainant had not attended.

The Complainant was invited to a disciplinary hearing. He did not request access to audio visual calls, instead he just wanted to tape the conversations. He did not attend the hearing.

On considering the information open to her, Ms A determined that the complainant had falsified the records.

She submitted that “all we had was evidence of it having happened. It would have been different if the complainant had engaged in the process”

During the Cross examination, Ms A re-affirmed that she had not been involved in the investigation so there had been no need to recuse herself from the Disciplinary Hearing. The Complainant had heard the call recordings in French and had not asked for the calls. He had no previous disciplinary history. Ms A had worked with him for 1.5 years.

Ms A explained her direct contact with the complainant to engage in the process as her bid to save the investigation.

Evidence of Ms B, Appeals Manager

Ms B had travelled from the UK Company site and had been delegated the Appeal without any prior involvement in the case. He did not request an audio recording of the calls.

The Appeal consisted of 18 points and the complainant challenged Ms Bs understanding of the process. Ms B contended that she had run a fair appeal.

During cross examination, Ms B confirmed that Gross Misconduct had emerged from the Disciplinary hearing. She did not establish grounds to change this outcome. Gross Misconduct was outlined in the Disciplinary procedure. Ms B had no recollection that the complainant requested his job back

The Respondent summarised by saying that the customer interaction was affected by the alteration of the log records. A satisfaction survey normally follows a call to a customer and this survey could not be undertaken as the email addresses linked to the complainant were affected in 10 cases.

The Complainant proved extremely challenging in an Investigation and Disciplinary setting and behaved in a very inconsistent and avoidant manner. He did not engage in the process and instead seemed to lose himself in procedural commentary on personal indemnity in the face of a failure to record meetings, rather than responding to the questions asked of him. He fully accepted that the Disciplinary procedure could be conducted in writing/email rather than verbal meetings.

The Respondent submitted that the complainant had been treated fairly but the company had lost trust in him to a level which warranted a summary dismissal in accordance with the Disciplinary procedure and business conduct policy.

The Complainant commenced as a Customer Services Support in November 2008. He worked full time. He submitted that he had been dismissed on 19 July 2018 for Gross Misconduct. He sought to be re-instated in his position.

The Complainant outlined that he had no issues with his employment with the respondent until 2016-2018 when he submitted that he had raised issues on the misstatement of facts and omission of critical information he had found misleading. He concluded that trust had decreased between him and his Managers and he was uncomfortable with verbal interactions.

An issue arose for the complainant when he was notified of allegations involving the alleged alteration of customer email addresses. He submitted that he had offered to audio video record verbal interactions but was declined. He submitted that he had not received details of all the allegations raised against him. He had a clean disciplinary record when he was summarily and unfairly dismissed.

On the Day of Hearing, the Complainants Solicitor raised several points of concern regarding the substantive and procedural framework surrounding the complainant’s dismissal. The Complainant understood that the person who raised the allegations against him was his line Manager, Mr B. This constituted a flawed investigation.

The Complainants representative went on to submit that the complainant was asked to make a further presentation in relation to the investigation. He offered two contact names of Ms A and Ms H. This placed both Managers within the realm of the Investigation and precluded their eventual involvement at the Disciplinary hearing. In this regard, the complainant’s representative put forward that the process was fatally flawed. He went on to outline that the complainant was not provided with the decision of the investigation hearing. He had been provided with minutes but no outcome.

He argued that the notice of invitation to the Disciplinary hearing was defective as it was void of evidence relied on by the respondent. The Complainant had not been given an opportunity to seek legal advice and was placed under very narrow time constraints to furnish his responses to the allegations. He was not provided with reasonable notice.

The Disciplinary outcome letter referred to 37 cases, yet the complaint which led to the Disciplinary hearing referred to 10 cases. The Complainant submitted that the Disciplinary Manager went outside her permitted remit in that regard which resulted a procedurally misconceived decision. The Complainant was not permitted consideration for his unblemished service. He had not been forewarned of the consequences of alteration of email addresses.

The Complainant was not provided with any audio recordings of the 36 calls. This was information within the gift of the respondent. There was no finding of gross misconduct notified to the complainant either at the Investigation or Disciplinary hearing stage. the Complainant dispute that any evidence existed on the complainant’s deliberate falsification of records or any intentional modification of customer emails to avoid negative surveys.

The Complainant submitted that there is no evidence that the 10 cases out of a total of more than 10,000 call interactions amount to anything other than the verbal demand of manages or human error as the managers had made this request by email on 2 occasions in April and June 2018.

The Complainant had been denied access to requested information necessary to defend his good name. Taking everything into consideration, the complainant re-affirmed his desire for re-instatement.

Evidence of the Complainant:

The Complainant outlined that he had a clean disciplinary record. He explained the process surrounding the records at the centre of the case. If level 1 could not resolve an issue, it moved to his level at Level 2. He had no idea that flaws at this level could result in his dismissal. The Complainant had actively pursued audio recordings of calls. He submitted that he had not falsified email addresses. He felt outnumbered as his line manager, the disciplinary and appeals managers all had access to the log records. He had been denied this information.

The Complainant told the hearing that he had no idea which Peer of his was involved in the feedback which grounded the allegations in April 2018. He confirmed that he had requested his job back on appeal and no alternatives had been discussed outside of his dismissal.

He explained that he had been a good employee and the false allegations which led to his dismissal had made him unemployable. He mentioned two areas where he had sought work. He stated that he could not recall if he had answered the June 8 email.

During cross examination, the complainant said that he had worked for a fair employer but struggled with an unfair disciplinary process. He wanted to obtain an audio of the managers discussions with him. He did not accept that he held the responsibility for rebuttal of the allegations. He accepted that he had been informed that potential for dismissal existed in the Disciplinary process.

He had stated on multiple occasions that he had been wronged. He wanted to secure a screenshot of the log records. He had wanted to attend the investigation earlier but needed time to gather evidence.

There were several reasons for the delayed start in the investigation, holidays, sick leave and time to secure a representative. The Complainant affirmed that he had engaged in providing clarification through verbal contact and by email, but the Respondent just invented a story to go around it. He reverted to two complaints he had made in 2016 and 2018. This coincided with the outcome of the investigation.

He believed that he had been unfairly dismissed. The Respondent had no evidence of his falsifying records and he wasn’t given a chance to find evidence. He was faced with a biased investigation and Disciplinary hearing and he could have been provided with transcripts of the records, but these were refused

The Complainants representative reaffirmed that the date of dismissal stood at 19 June 2018 but if that failed, he wished to rely on an application for an extension on reasonable grounds. The contract of employment did not stay an appeal. He proceeded to read in the appeal letter to the record of the hearing. The Complainant did not make deliberate changes to the email addresses. He always believed that customer service audio recordings were retained by the company. The Complainant had made a data access request for information and had been denied this.

The Respondent had ignored his unblemished service and had not considered options short of dismissal. The Complainant was keen to obtain a re-instatement of his position

I have considered the written and oral submissions of the parties in this case. I am obliged in the first instance to consider the preliminary arguments made on the “statutory time limits argument “prior to addressing the substantive case.

The parties are agreed that the complainant was dismissed but disagreement has followed on the date of dismissal. The Respondent has submitted that employment ended in the case on 19 June 2018, the date on which the decision to dismiss was communicated to the complainant. He received 4 weeks pay in lieu of notice. The Complainant has expressed an alternative viewpoint and had contended that 19 July 2018 constitutes the actual date of dismissal, the date on which the notice should have expired. The Complainant has also asked that I consider the potential for an extension of time due to reasonable cause.

 The dates have a relevance for me in terms of my scope under Section 8 of the Act

Section 8 (2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.

This claim was received by the WRC at 17:35 hrs on 14 January 2019. The date of dismissal was listed as 19 July 2018, where notice of dismissal was given as 19 June 2018.

I considered a copy of the contract of employment and identified the following clause under Disciplinary procedure:

Certain serious breaches of company rules, custom or practice may result in your being dismissed without notice or pay in lieu of notice. Full details of the Disciplinary procedure are available on internal web site

Section 1 of the Act defines date of dismissal as meaning

(a)    Where prior notice of the termination of contract is given and it complies with the contract and the Minimum Notice and Terms of Employment Act, 1973, the date on which the notice expires.

(b)    Where notice is not given or is non-compliant with the Act, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the latter of the following dates

(1)    The earliest date that would follow the contract

(2)    The earliest date that would follow the provisions of Minimum Notice legislation

The date of dismissal is very important in this case and this caused me to examine the facts submitted at Preliminary argument stage.

The case is a little unusual in that the procedures leading up to the complainant’s dismissal, in the main were not populated by the complainant’s presence. I do not intend to stray into the substantive case here, but by the time the complainant had been invited to a Disciplinary outcome meeting scheduled to take place on 19 June at 11.30 am, the complainant had just 1 face to face discussion at Investigation stage on June 8 and the Disciplinary hearing was conducted by written submission with the complainant’s consent. He told the hearing that he settled for this option when he could not secure permission to audio record the procedures of inquiry /disciplinary.

The Complainant was working in his role up to the day of the disciplinary outcome which was conveyed to writing on that day of 19 June 2018.

“As a result of the seriousness of your actions we have decided to terminate your employment with X effective today 19 June 2018. Despite there being no requirement to pay notice due to your contract being terminate for gross misconduct we have taken the decision to pay you 4 weeks in lieu of notice “

The Complainant did not return to work post that date and undertook his appeal by written submission on 22 June 2018, the outcome of which issued on 3 September and did not alter the outcome of dismissal.

In the Complainants notification of appeal, he recognised that he had been dismissed June 2018.

I returned to the contract of employment to examine whether it provided for a stay in proceedings pending appeal. It did not.

I was mindful of an earlier EAT case where the then Tribunal has clearly struggled to do the right thing in identifying an accurate date of dismissal. I note the different construct in the communication of dismissal provided to Mr O Neill and the complainant in the instant case.

O Neill V Bank of Ireland [1993] ELR 145

The representations made by you do not justify any change in my original proposal. I now wish to advise you that you have been dismissed from the bank. The dismissal will take effect immediately unless you give notice of appeal within ten working days of receipt of this letter. In that event the dismissal will not be effective pending the appeal and the present status will be maintained.

In that case the appeal stayed the dismissal and the date of dismissal was later identified by the Tribunal as a different date to the first notification.

I have not identified any grounds for me to identify a different date of dismissal in this case to that of 19 June,2018 as that was the date that employment ended. The complainant accepted pay in lieu of notice and I could not identify that the date of dismissal was raised at appeal stage. The appeals manager told me that the complainant had not asked to return to his job.

Section 8 of the Minimum Notice Act allows either party to terminate a contract without notice but only because of misconduct by either party .

 Right to terminate contract of employment without notice.

8

8.— Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

The clause outlined in Section 8 has applicability here . The Complainant had not been placed on actual notice of his dismissal . He was told to leave there and then on June 19, 2018 by means of summary dismissal . I am making no finding on the substance of that action , however, notice was not actioned by the employer outside a payment in lieu accepted by the complainant .

I have concluded that 19, June,2018 is the correct date of dismissal in this case, this places the complainants claim outside the jurisdiction of the Act unless a submission for an extension of time to 12 months post dismissal reasonable cause is permitted.

I have considered this claim for an extension of time very carefully. At the outset of the case, I asked the complainant if he had found work post dismissal. He had not. I flagged that I would expect him to advance evidence of loss and mitigation. He provided a very limited recall of mitigation. I had no understanding of what prevented the complainant lodging his claim sooner. No medical evidence accompanied his claim for an extension of time.

The Labour Court has addressed the test for extension of time on reasonable grounds across the board and the seminal case of Cementation Skanska V Carroll WTC 0338, The Court sought reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, it makes sense, be agreeable to reason and not be irrational or absurd.

That is, that the reason for the delay must be capable of being attributed to the arguments around reasonable cause.

I noted that the complainant was a lay litigant and very shocked by his dismissal. I appreciate that a return to full resilience may take time in those circumstances. However, I was struck by the similarity in the composition of the document which grounded the appeal in June 2018 and the written submission presented by the Complainants Solicitor at hearing in July 2019 .I could not identify any reason why the complainant did not advance his case to the WRC sooner than January 2019 .His presentation on appeal differed considerably from his earlier written submissions to his employer and pointed to him having taken external advice .

To me this delay pointed to a lack of urgency on the complainants behalf and diminished his stated desire to pursue the sole remedy listed on his complaint form , that of re-instatement .The delay in pursuing his case before the statutory body did not fit for me given his submission of an elaborate appeal in late June and his reception of an elaborate response dated September 2018 .I found a 4 month delay post reception of the appeal outcome to be fatal to his application for an extension of time .

While I appreciate that the complainant was keen to have his dismissal case heard, In the circumstances and in applying the established test to the facts surrounding the application. I find that I cannot grant the extension of time sought by the complainant.

I do not have the jurisdiction to take this matter further. The claim is not well founded.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision 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 advanced his case outside the statutory time limit set down in Section 8 of the Act and this could not be saved by an argument for reasonable cause.

I have found that I lack the jurisdiction to take the matter further. The claim is not well founded.

Unfair Dismissal, time limits