Complainant

Respondent

Anonymised Parties

An Employee

A Community Development Organisation

Representatives

Stafford, Solicitor                          

Peninsula Group        

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-00011410-001

18/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011410-002

18/05/2017

The Complainant contends that he was unfairly dismissed from his employment for allegedly working against the interests of the Company. He further contends that he was not given a written contract for the position from which his employment was terminated.

The Respondent contends that the Complainant was fairly dismissed following a disciplinary process which found that the Complainant had been working on a Project with a separate organisation to the exclusion of the Respondent, that he had misrepresented his position to the CEO on a number of occasions, that he had repeatedly failed to attend meetings with the CEO to report progress and that his actions had amounted to gross misconduct.   Extensive written and oral submissions were made to support the Respondent’s case that the actions of the Complainant were such as to go to the heart of the Complainant’s contract of employment, which stated inter alia that he should not be directly or indirectly engaged, concerned or interested in any other business which is in competition with the Respondent.   It is argued that if it is found that there were technical breaches in the procedure for dismissal, then it is submitted the case of Mlynarski – v – Pianos Plus (UD 1294/2008) should be relied upon to award a nil compensation sum.

The Complainant was employed by the Respondent for over 6 years, first as a Development Officer and latterly as Acting Director of Services and Director of National Services.   He was dismissed following a procedure which it is argued was significantly flawed. It is also argued that the Complainant’s dismissal was also substantially flawed. Extensive written and oral submissions were made and a number of witnesses called to support the Complainant’s case summarised as follows:   Substantive issues:                                                                                                                                               The Complainant worked on a significant community project, involving security of property, in conjunction with a number of stakeholders. It cannot be reasonably stated that the Complainant, by working in conjunction with stakeholders on a joint project, was “engaged, concerned or interested in any other business”. The stakeholder with which he was involved is not a business and is not a competitor, given that it operates in a different division of the community.     The Complainant denies that he failed to communicate with the CEO, he had problems with his phone and emails at a certain point and had reported this to the Company.   It is submitted that the allegations made against the Complainant were unfounded, vague and unsubstantiated. Explanations and evidence provided by the Complainant that he was not “working in competition” were ignored.

Procedural fairness

It is submitted that each and every step taken by the Respondent was done without any contractual basis. It is argued that there was no basis to suspend the Complainant pending investigation. It should be noted that the investigation of the Complainant made use of his emails and CCTV. The Complainant was at no time made aware that the Respondent was operating any such monitoring and that the absence of any contractual provision or policy should prove fatal to the use of such methods as disciplinary weapons. It is argued that the disciplinary process was unfair for the following reasons:

The Complainant was denied representation of his choice.

The Investigator was not independent and took instructions from the CEO.

The CEO provided extensive commentary by email following the investigation meeting and the Complainant was never given the opportunity to respond to same. It is clear from the content that the CEO orchestrated the disciplinary act, and that the outcome was a foregone conclusion. He signed all letters (pp’d) relating to the process.   It is further argued that there was a lack of independence and impartiality on the part of the person who conducted the Appeal.

The reasons advanced for the Complainant’s dismissal were that he was allegedly working against the interests of the Respondent, providing information to competitors, conducting non-work related activities during working hours and using company property to complete non-work related activities.        Having reviewed the evidence and submissions, I find that the disciplinary procedure utilised by the Respondent had a number of flaws.   Specifically, the use of covertly obtained emails and CCTV, and the apparent involvement of the CEO at each stage of the process, including signing the letters relating to the process and providing extensive commentary to which the Complainant was not given a right to reply. Based on the evidence, I find that the Complainant in this instant case seems to have found himself in a precarious position, where another community organisation was raising funds to advance the project but using the name of that other organisation. The Complainant has been less than candid or cooperative with his employer and to that extent has contributed to the situation in which he found himself. I have considered the test of reasonableness applied in Noritake (Irl) Ltd v. Kenna (UD/88/1983). I find that the Respondent did believe that the Complainant misconducted himself, that it did have reasonable grounds to sustain that belief but that the penalty of dismissal was disproportionate. I found no evidence that the Respondent considered a lesser penalty, such as final written warning which might have been more appropriate.