Complainant

Respondent

Anonymised Parties

A Sports and Leisure Supervisor

A Hotel

Representatives

Denis Linehan, Denis A. Linehan & Company

David Gaffney ,Gaffney 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-00017129-001

29/01/2018

This is a claim for Unfair Dismissal which is contested by the Respondent. Both parties were legally represented. The Complainant by Denis Linehan and the Respondent by David Gaffney, both Solicitors. The Respondent submitted a comprehensive book of documents which both parties referred to. The Respondent had two witnesses in attendance and the Complainant had one witness. The Complainant sought the remedy of compensation if successful and submitted evidence and he submitted that he had found new work shortly after his dismissal.

The Respondent submitted a copy of contract of employment. The Complainant earned €406.07 nett per week. He also earned an associated income from private swimming lessons.

The Respondent accepted that the complainant had worked at the Hotel Leisure Centre from 3 January ,2009 until his Dismissal in respect of gross misconduct on 6 December 2017.

The Respondent representative submitted that the complainant had been offered fair procedures and while the Investigation was conducted by an Independent person, the complainant had been afforded a lengthy process for consideration of the allegations inclusive of an adjournment.

The Respondent outlined the difficulties experienced by the complainants inappropriate behaviour. When the complaints inclusive of bullying and harassment were raised and investigated they cumulatively amounted to a finding of gross misconduct which warranted summary dismissal in accordance with the company procedures. The Respondent had lost trust in the complainant in the instant case.

The Respondent had afforded the complainant an opportunity to challenge the findings and he had not sought to cross examine the complainant, a co-worker in the Leisure Centre (Ms A). The Complainant did not avail of this opportunity.

The Respondent submitted that Ms A had made a complaint to Leisure Club Management on 5 July 2017 which prompted the investigation. She had requested that the matter be dealt with formally.

The Complainant received a letter dated October 11 which convened the Disciplinary process.

The Respondent activated the company disciplinary procedure on 17 October. The Company HR Manager, Ms B manage this forum. The Disciplinary hearing addressed all the incidents which Ms A had complained of namely:

Unfair Delegation of Duties, Alleged misappropriation of property, work interference and problems with work practices.

The Respondent had a difficulty with the complainant’s inconsistent responses throughout the investigation and the Disciplinary hearing as he varied between not being able to remember and providing inconsistent versions of events. The Respondent representative indicated that the complainant would have benefitted from admission of the incidents and he had not demonstrated remorse and termination of employment was the sole and appropriate option to the Respondent.

The Respondent also raised the company’s dissatisfaction with the Complainants behaviour on foot of his dismissal. He displayed an A4 page stating, “Bye Guys, just got fired”

Evidence of Ms B, Human Resource Manager, Ms B.

Ms B confirmed that she had been a HR Manager for 11 years. She recalled that a newly appointed Leisure Centre Manager had brought Ms A’s complaint to her attention, she was unclear of the date. The Manager told her that she was commencing an investigation on foot of Ms As complaints. Ms A was reported as not sleeping at night and was not at work. The Investigation advanced on formal lines. Ms A was in hospital. The Draft findings caused her to be very upset. Ms B was not involved in the Investigation.

The Draft Report was made available on 11 October 2017 and she had met with the Complainant on 17 October where all the allegations were discussed. Inconsistencies arose in the complainants and Ms as recollections. The list of allegations had been upheld at Investigation stage.

Ms B held a Disciplinary Hearing where she gave the complainant an extended opportunity to respond to all the allegations. On careful consideration, she deemed dismissal to be the most appropriate sanction. the Complainant responded to this decision by grabbing the letter out of her hand.

Ms B was assured that she had made the right decision in terminating the complainant’s employment. She had lost all trust in him.

During cross examination, Ms B confirmed that there were 15-17 employees in the Leisure Centre. Ms A who had been there three years on a part time basis reported to the complainant and he assigned her duties, one of which was opening and closing Leisure Club doors together. She confirmed that the first time she heard of the Investigation was 20 July 2017, she confirmed that there were no complaints before that. She denied this was unusual.

Ms B believed that Ms C the Leisure Club Manager commenced employment during July 2017 but wasn’t sure. She denied that there was a sea change of sorts post her appointment. Ms B confirmed that the Complainant has asked Ms A to step in for him when he was sick in November 2016, but he had not followed procedure in his role as supervisor. This was followed by many unsatisfactory incidents, without an obvious final straw but a worrying accumulation of wrongs none the less.

When asked why Ms A had waited over 7 months before making a complaint, Ms B replied “I couldn’t say “

Ms B confirmed that Ms A was gaining more hours for her private swimming lessons and other workers had asked for extra hours. Ms A was a swimming teacher so the questions were not legitimate.

When asked to justify the reasons for a summary dismissal in the absence of a significant justification and “no previous form,”? Ms B returned to the Disciplinary procedure which allowed for an accelerated progression to level 4 and the consequences of Ms A being distressed and not sleeping. Ms B confirmed that the complainants miss truths during this process were an issue. She added that the Complainant as a Supervisor had a greater knowledge of what ought to be done.

The Complainant and Ms A were on completely different shifts. MS B submitted that she wasn’t aware of the Complainants Performance review now.

Evidence of Mr A, Group HR Director and Appeals Manager:

Mr A had commenced work at the Hotel Group on 15 November 2017 and had received the complainants file for appeal purposes during his second week of employment. He was not involved in the events surrounding the termination and he prepared to hold the appeal on foot of the letter of appeal dated December 12, 2017.

He met the Complainant, who was unaccompanied in Limerick. The Complainant queried the process as he had submitted his appeal and wondered why he was back again in a process?

Mr A explained that was to make full use of the meeting and confirmed that he was there to hear his appeal. Mr A had read the Investigation minutes, the report and the Disciplinary procedure in preparation. There was nothing in the documents which prompted a look back. He was conscious that he was managing a process involving an employee from 2008 whose livelihood was at stake.

In engaging with the complainant and his responses, he was struck by the reported force of cation in dropping the otter boxed phone to the floor and he balanced this with the complainant’s statement that he had not dropped it intentionally. He was troubled by the inconsistencies about his suggested come pence on rosters as he had not mentioned training deficiencies. He recalled that the complainants demeanour had improved during the appeal but was troubled by the inconsistencies in the truth which damage a necessary environment of trust.

Mr A submitted that the complainant was reluctant to understand the gravity of the situation, he was surprised that he did not get a sense of contrition.

During cross examination, the complainants representative asked Mr A if he was aware that the Draft Investigation Report was open on the shared drive?

He confirmed that he had undertaken 1 summary dismissal in 19 years of practice and was satisfied that the sanction of dismissal was justified in the instant case.

He put himself in the shoes of Ms B during the 1-hour long Appeal Meeting. He remained troubled that the complainant had not been contrite and when the complainant’s representative suggested that the complainant may not have believed the allegations. Mr A responded that the complainant had an opportunity to be contrite but later confirmed that his contriteness wouldn’t have changed anything. He then amended this by stating that while the complainant had not requested his job back, he would have given greater weighting to honesty and consistency during the process had they been in existence. He denied that the outcome had been preconceived.

The Complainants Representative opened by expressing disappointment that a key witness employed by the Respondent was not in attendance as several events attributed to the reason for his client’s dismissal had originated from her.

He submitted that his client had commenced work as a Leisure Centre Attendant in 2009 moving up to the role of Supervisor. The Hotel had gone through receivership and was taken over by a grouping of Hotels. The Complainant had been the subject of a series of allegations in or around July 2017 which were not addressed within the time frame of their origin. These were a series of 5 allegations ranging from Bullying and harassment to incidents on operational matters. The Complainant had not been addressed on these prior to receiving the complaint.

An Investigation followed and resulted in a finding of gross misconduct and resulted in the complainant’s termination of employment which while challenged, stood unaltered on appeal.

The Complainants representative confirmed that he intended to mount serious challenge to the facts as put forward by the Respondent.

Complainants evidence:

The Complainant introduced himself as having been a Life guard for 17 years and had spent 2.5 years in the US as a Soccer Coach. He returned to Ireland in 2008 where his family were living locally. He went on to become a Supervisor whose duties involved:

Helping the Manager

Training Staff

Weekly reports, rosters, wages.

He had stepped into the Acting Managers role on three occasions He had received two disciplinary sanctions in 2010 but had a clean record since. He confirmed that he had a performance review towards the end of July / July where he had been asked for improvements by the Leisure Club Manager.

He was totally shocked when he received the 20th July 2017 letter of complaint from Ms A.

He recalled that he had experienced some difficulties with Ms as mobile phone when he demonstrate a “drop” in the encapsulated phone, but had apologised to the then Manager and Ms A and thought that had resolved the matter.

He recounted what he could about the incidents in the July complaints. He recalled that he had received the letter from the newly appointed Leisure Club Manager and prior to her arrival he had been the De facto Manager. He confirmed that the complainant was  college student and he had some concerns about her requesting time off for the last two weeks of May 2017 while requesting access to swimming lessons on 13th May. He wasn’t happy about this.

On 17 July, the leisure Club Manager had contacted a Chemicals company to deep clean the floor area and had demonstrated how he was to undertake the job of cleaning. Another employee and Ms A demonstrated the Ladies Changing room floor. The Complainant discovered that Ms A was missing ¼ way into the work an asked where she had got to? Ms A was requested to complete the task and he recalled her being late and very upset where her colleague accompanied her to her car. He submitted that the complaints were lodged two days later.

The Complainant took issue with the allegations placed before him. He felt that the dismissal was overly severe and He couldn’t see the gross misconduct complained of. He really didn’t think that dismissal was looming, but he did confirm that he knew he was at risk. He felt pressurised that one person was behind his losing his job.

He submitted that he has secured new work via a friend shortly after his dismissal his dismissal and confirmed his loss inclusive of his extracurricular earnings at the club. He gave some evidence of mitigation.

During cross examination, he confirmed that he understood that he had had a good working relationship with Ms A. He did not accept that he should have asked for training in Pool plant. He confirmed that he wasn’t happy with the roster and couldn’t answer further.

The Complainant reaffirmed that he had apologised to Ms A regarding the Otter box incident. He did not think the phone would break.

He confirmed that he had not worked with Ms A following the submission of the July complaint. He affirmed that he had not appreciated just how serious this matter was and he stated that he didn’t get a chance to do anything. He was told not to make any contact with Ms A.

The Complainant confirmed that even if all the issues complained of were all put together, he still contended that he had been treated differently. He confirmed that two colleagues had of their unease as “had not made a formal roster complaint and rationalise his informing Ms A as “I was new in the position “

I have carefully considered the submission both oral and written in this case. The claim in the case is for Unfair Dismissal which is denied by the Respondent.

I have taken the time to consider the extensive documentation submitted in the case and have paid attention to the company procedures on

1 Grievance and Disciplinary Procedure

2 Bullying and Harassment Procedures

I have also taken account of their application to the facts of the case.

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

Section 6(4)(b) provides an exemption to S.6(1) in the law below.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

……..

The Respondent, on whom the burden of proof rests in the case, has relied on Section 6(4)(b) in their submissions. Their case rests on a finding of gross misconduct issued in the aftermath of an Independent Investigation and Disciplinary Hearing, the decision to dismiss being unaltered on appeal. The Complainant asked that the case be viewed through the prism of an almost 9-year work record and that the complainant was not engaged in any disciplinary process prior to the complaints of July 2017. If successful in his claim, he sought the remedy of compensation.

I thought it best to start with the July 2017 complaints from Ms A. I accept that the Complainants Representative registered his dissatisfaction that the Respondent had not provided Ms A as a witness to the hearing. For my part, I would have liked to have met with the Leisure Club Manager who handled the antecedent events to the case.

It appears from the documentation before me that Ms A raised many complaints with the Leisure Club Manager on 5 July 2017. The Leisure Club manager then scripted the complaints and Ms A appears to have signed them. There then appeared to have been a further exchange on the 18 July where Ms A seems to have told the Leisure Club Manager that the complainant was “horrible to her” I am unclear how a collection of statements over an 8-month duration made their way to the formal letter announcing an investigation dated July 20.

Ms B told me that she had been informed by the newly appointed Leisure Club Manager that she was holding an Investigation into the complainant on July 20. I reviewed the Bullying and Harassment Policy and found that the complaints were insufficiently screened and alternatives were not considered at an early juncture in the case. This was a clear variance to the procedure for instance, I note that Bullying is distinguished from a “normal grievance procedure” in relation to:

Complaints relating to instructions issued by a supervisor assignment of duties, terms and conditions of employment or other matters which are appropriate for referral under the normal grievance procure do not constitute bullying.

I found the Investigation flawed as it was not governed by clear terms of reference and the Investigator/ leisure Club Manager   had been involved in the instruction given to clean the centre on July 17. This was not disputed on the complainant’s evidence. I was uncomfortable with the Investigators proximity to the complaints.

I   found no evidence of any measures taken by the Respondent to manage this issue before permitting an escalation to a formal complaint of bullying and harassment .For the complainants part, I found that he did not appreciate just how seriously the Respondent was looking at this issue and while I found a “ rush to judgement” on behalf of the Respondent , I found that the complainant approached the investigation in an underwhelmed fashion , not for a minute believing that his job was at risk .I note that there was provision for an appeal of the Investigation report contained in the policy , yet , I did not establish any evidence of this being offered or requested by the parties .

I note that the Leisure Club had been through a period of change of ownership and had a high turnover in Leisure Club Managers. This was evident in the Complainant evidence where he stepped up when told he had to, but wasn’t actively seeking promotion during the facts of the case.

The issues inserted in the July 20 letter to the complainant arose from an incomplete management intervention. There were chronicled as:

1 November 2016: Alleged unfair delegation of duties and responsibilities.

2   January 12, 2017 Alleged misappropriation of property

3 May 5-July 17, 2017, alleged unnecessary work interference and delegation of duties and responsibilities.

These were largely operational issues capable of being addressed under the grievance procedure, but for some reason they were not. In reaching this conclusion, I have been guided by in relation to the parameters associate with Bullying.

In Ruffley V Board of Management, St Ann’s School, 2017 {IESC} 33

The test requires all the elements to be fulfilled. It should be considered sequentially. It is objective. Not subjective. It cannot be right to formulate liability based on how people see the conduct of their colleagues in the workplace, but instead only based on how that conduct would be objectively viewed; see Glynn v Minister for Justice, Equality and Law Reform & OR’s [2014] IEHC 133 at paragraph 54. An employer is entitled to expect ordinary robustness from its employees; Croft v Broadstairs and St Peter’s Town Council [2003] EWCA Cave 676. Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit.

I went on to consider the Disciplinary hearing conducted by Ms B and found while the engagement followed the Company procedures in that vein, the hearing had not been prefaced on the complainant being afforded an appeal of the Investigation report.

I was surprised that Human Resources Department presided over the Disciplinary hearing in the absence of an Operational Manager and noted that the Leisure Club was a subsidiary of the main business. I found it a missed opportunity that a representative of that business was not involved at that crucial juncture. This was an employee of almost 9 years standing and I would have expected a higher level of governance.

I listened carefully to Ms Bs evidence and detected that the Respondent had developed a certain level of exasperation with the complainant as he delayed on engagement and gave inconsistent answers. An unease was mentioned in relation to the complainant relying on the company email rather than his personal email for communication during the Investigation and Disciplinary hearing. I understand this.

However, I took issue with the decision-making process which led to dismissal. Ms B told me the hearing that the cumulative effect of the proved allegations amounted to Gross Misconduct warranting dismissal. I considered page 43 of the Respondent Policy and reflected on the facts of the case. I noted that Gross Misconduct was omitted from all documents outside the letter of dismissal and while the Respondent had the complainant on notice of his possible termination of employment, I found there was insufficient regard to the charge of “Gross Misconduct”

In the Labour Court case of Kilsaran Concrete and Vitalie Vet UD 1611, In assessing the conduct of the Employers Disciplinary procedure , the Court referred to the and older EAT case of Lennon V Breddin :

Summary dismissal is the nuclear weapon in the employer’s arsenal of disciplinary sanctions. Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability (under that Act) for statutory minimum notice where the dismissal is for certain forms of very serious misconduct. Commenting on section 8, the Employment Appeals Tribunal in Lennon v Bredin MN160/1978 stated:

·         “We have always held that this exemption applies only to cases of 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 serious category.”

I realise that the complainant received paid notice in this case, I have included this extract to outline where the case law lies as The Act does not expressly define Gross Misconduct. I am mindful of the Respondents defence in the case in terms of Section 6(4) (b).

I have concluded that the matters complained in the Investigative Report and Disciplinary Hearing   do not constitute gross misconduct in this case. I have found that the Respondent rushed to judgement and did not balance the behavioural issues complained of with the complainant’s extensive service as a Supervisor and the rapid advancement to Investigation in the infancy of the Leisure Club Managers arrival. In all this I found that the Respondent acted unreasonably and gave insufficient weighting to lower level sanctions. In accordance with Section 6(7) of the Act, I found this to be unreasonable the sanction of Dismissal was disproportionate.

However, I found that the complainants overly laid-back approach and his refusal to accept the offer of representation made by the Respondent to have impeded his progress in the case. I have considered the Respondent consistent accounts of just how this approach unsettled the process at Disciplinary Hearing and on Appeal and I find that the Complainant showed a high level of immaturity and contributed to his own demise. I have made this finding influenced by the undisputed Signage demonstrated by the complainant to his work colleagues on the day of his dismissal.

I have considered the case law advanced by the Complainant and was particularly drawn to the statement of the Chair of the EAT in Kunceviciene and Elder Nursing Home ltd UD 97/2015,

“Breaches on any Policy vary along a scale of seriousness. It is not reasonable to prescribe the same and ultimate sanction of dismissal for each and every breach irrespective of the nature of the breach, Indeed, the respondents action in allowing the claimant to continue in the employment without any sanction or restrictions in her duties for almost three months following the incident is inconsistent with its position that the breach was of such nature as to constitute gross misconduct and justify dismissal.

….

The Tribunal is satisfied that imposing a sanction of dismissal that will travel with the claimant during her working life is neither reasonable nor fair and falls well below the standard of a reasonable employer “.

I found a considerable overlap between Kunceviciene and the instant case. The Complainant was not entered into any corrective or supportive programme for his perceived problem behaviour and was working without restriction until the dismissal date. I found dismissal in these circumstances to be overly zealous.

I find that the complaint of Unfair Dismissal has been made out and is well founded. The Respondent cannot rely on the defence contained in Section 6(4) (b) as they have not demonstrated that substantial grounds covered the Dismissal.

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 was unfairly dismissed. I have given some consideration to the evidence on loss and mitigation and the respondent challenge to this. I have decided that compensation is the most appropriate remedy in the case given the mutual acceptance that the employment relationship is irretrievable.

Having regard for the contribution made by the complainant in his own dismissal, and mindful of the short period of loss before comparable work was sourced, I award the sum of €7,500 in compensation for the Unfair Dismissal.

Unfair Dismissal