ADJUDICATION OFFICER DECISION & RECOMMENDATIONS

Adjudication Reference: ADJ-00013609

	Complainant	Respondent
Anonymised Parties	A Technical Support Analyst	A Services and IT Support Company

Representatives

Self-represented

IBEC

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00017800-001	06/03/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00018564-001	17/04/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00019031-001	08/05/2018

Date of Adjudication Hearing: 12/07/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

The Adjudication Adj 13609 encompasses 3 Complaints lodged between March and May 2018. As there is a “Cumulative” effect in the pleadings the Unfair Dismissals Act,1977 complaint ( CA-00019031-001 ) is dealt with first.

Background:

The case concerns a Technical Support analyst and a Services Support Company. It is alleged that the Respondent employer did not properly apply the Internal Grievance and Disciplinary procedures and Unfairly Dismissed the Complainant.

1: Summary of Complainant’s Case:

1:1 Unfair Dismissals Act,1977 complaint. CA-00019031-001

The Complainant was dismissed on the 26th April 2018 following a Grievance and Disciplinary process that lacked natural justice and fair treatment. In particular the time limit of three days for raising grievances was ignored. His requests for full details of all evidence against him were ignored and the time given to him to prepare an adequate defence was completely inadequate. The Complainant also felt that his contract of employment did not include the terms of the Grievance and Disciplinary process. He was selected for punitive treatment because of other complaints he had made against the respondent in 2017. There was no firm evidence in relation to the allegations, made against him, that were used to base the Dismissal decision.

He had not utilised the Internal Appeal procedures. He felt that the case he had referred to WRC took precedence over any internal procedures.

1:2 CA-00017800-001 Industrial Relations Act ,1969 Complaint No 1 -

The internal respondent Grievance and Disciplinary procedures were “bogus”. No effort was made by the Respondent to treat fairly with the Complainant. The Grievance procedures were used against the Complainant in a manner that amounted to defamation and indeed he was subject to libel and slander. Time scales were not observed. The Procedures were in place to assist in the defusing of Workplace disputes. This was manifestly not the case.

1:3 CA-00018564-001 Industrial Relations Act, 1969, Complaint No 2

The Complainant alleged that the Respondent had continued with the Investigative and Disciplinary processes while the Complainant was on Sick Leave and Annual Leave. He had requested that no email etc be sent to him while he was on sick absence or annual leave. This was an example of the respondents’ tactics of bullying and Harassment of him by an unfair use of the Grievance and Disciplinary processes. He was denied “Uninterrupted” leave and sick leave even though he was suffering from stress brought on by the Respondent.

2: Summary of Respondent’s Case:

2:1 Unfair Dismissals Act,1977 complaint. CA-00019031-001

The Respondent alleged that the Complainant had sent three offensive E mails in January and February 2018 and had in addition inappropriately used his Desk Top PC camera in a manner that was upsetting to colleagues.

An Internal Investigation, in keeping with Procedures as set out in the Handbook, was scheduled for the 21st March. The Complainant did not attend and the meeting was rescheduled for the 23rd March. Again, the Complainant did not attend citing a belief that he had lost faith in the Procedures and that they were in contravention of SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures.

In summary he did not participate in the Investigative process as set out in Company procedures.

A Disciplinary hearing was scheduled for the 27th March but had to be rescheduled due to the Complainant’s illness. It eventually took place on the 19th April. An outcome meeting was scheduled for the 26th April where the decision to Terminate employment was given. An Appeal was offered and an Appeal Hearing took place on the 17th May 2018. The Complainant failed to attend and the dismissal as confirmed.

The Respondent pointed to legal precedents regarding the need for Complainant to exhaust all internal procedures prior to taking Unfair Dismissal Act claims.

All procedures taken were in keeping with SI 146 of 2000, Representation was offered and all evidence shared. The Complainant failed to actively participate in the procedures and offered no adequate explanations of his actions.

2:2 CA-00017800-001 Industrial Relations Act ,1969 Complaint No 1

The Respondent completely refuted all claims made that the Internal grievance and Disciplinary procedures were in any way “Bogus” or that they had been used aggressively in an inappropriate fashion against the Complainant.

The Procedures were in complete keeping with the best Industry Standards and in full compliance with SI 146 of 2000. They had always been used professionally

2:3 CA-00018564-001 Industrial Relations Act, 1969 - Complaint No 2

The respondent completely denied the allegations made. Various meetings had been rescheduled to facilitate the Complainant. His allegations of the Grievance /Disciplinary procedures being used to Harass or Victimise him during his illness was completely without foundation.

3: Findings and Conclusions:

3:1 CA-00019031-001 Unfair Dismissals Act,1977 complaint

3:1:1 The Applicable Law

The relevant law here is the Unfair Dismissals Act,1977 supported by SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures.

The role of Natural Justice is also paramount. Mr. Justice Flood stated in Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

It is also accepted Legal practice that the role of an Adjudicator is not to re-hear a case but to satisfy him/her self that all proper procedure has been followed and Natural Justice has been seen to apply.

Reviewing the extensive written evidence and supporting Oral testimony in this case I had to conclude that all proper procedures were followed. Natural justice was in evidence.

The behaviour of the Complainant in not participating fully in procedures, not participating in the Investigation meetings and not exercising his rights to appeal following his Dismissal were not helpful to his case.

I felt his oral evidence was, while extensive, lacking in any concrete substance and credibility. He did not make any written submissions.

Considering the Penalty of Dismissal imposed when seen against the charges made against him I had to have regard to the principles of “reasonableness”. It is not for the Adjudicator to revisit the Penalty but rather to see if it falls within the “band of reasonableness.”.

This was first set out in the headline case British Leyland UK Ltd v Swift [1981] IRLR 91. This case has been followed closely in subsequent case law. In essence it made the point that if a Dismissal decision is “Reasonable” and one which an employer in a similar situation might take then it is deemed to be fair provided of course that all requirements of Natural Justice have been observed.

In Allied Irish Banks plc v Purcell [2012] ELR 189 Judge Linnane stated that

“It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken.”

Accordingly, and being satisfied that procedures were proper and in keeping with Natural Justice I have to find that the Dismissal was not unfair.

3:2 CA-00017800-001 Industrial Relations Act ,1969 - Complaint No 1

Having reviewed the Procedures, I found them to be well in keeping with good practice and not in any way “Bogus” as claimed.

The complaint is dismissed.

3:3 CA-00018564-001 Industrial Relations Act, 1969 - Complaint No 2

The complaint was, in essence, that the utilisation of the Procedures was in some way aggressive and demeaning to the Complainant in particular in relation to his Illness absence and a need for “uninterrupted” Annual Leave times.

Having reviewed the evidence both Oral and Written I could not find sufficient grounds to support this contention. The Respondent made more than adequate allowances for the Complainant and rescheduled meetings on a number of instances to facilitate his absences. None of the emails etc were in any way out of the norm or intimidatory.

The complaint is, accordingly, dismissed.

4: Decision and Recommendations.

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.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Act	Complaint/Dispute Reference No.	Summary Decision/Recommendation. Refer to Section 3 above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00017800-001	Recommendation to dismiss complaint.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00018564-001	Recommendation to dismiss complaint
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00019031-001	Decision -the Unfair Dismissal claim fails. Dismissal was not Unfair.

Dated: 5th October 2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

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