ADJ-00012020

Complainant

Respondent

Anonymised Parties

A Chief Executive Officer

A Registered Charity

Representatives

Aaron Shearer B.L. instructed by Anthony Joyce & Co. Solicitors

Sarah Lea B.L. instructed by Niall Breen & Co Solicitors

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-00015656-001

08/11/2017

The complainant was the Chief Executive Officer of the respondent organisation. The complainant was dismissed with effect from 30th August 2017 following an investigation and disciplinary process into complaints of bullying and harassment that were made against him by a colleague. The complaint relates to alleged Unfair Dismissal.

The respondent contends that the complainant was not unfairly dismissed. The respondent stated that there were a number of complaints made against the complainant in September 2016 by a colleague. The complainant was issued with a written warning on 17th October 2016 following an internal disciplinary process. The respondent stated that the complainant sought to appeal the written warning and an external consultant was appointed to ensure transparency and fairness. The respondent stated that the investigation carried out by the external consultant upheld 14 of 17 complaints made against the complainant. The respondent stated that its subsequent decision to dismiss the complainant for gross misconduct was proportionate and reasonable. The respondent confirmed that it had considered alternative sanctions but as the complainant had no insight into his behaviour, it took the decision to dismiss him from the organisation. The respondent stated that the complainant was provided with the opportunity to appeal the dismissal but did not do so.

The complainant contends that he was unfairly dismissed. The complainant stated that following receipt of complaints made against him in September 2016, the Board of the respondent convened a meeting and issued him with a written warning on 18th October 2016 in relation to his behaviour. The complainant stated that he was not informed that the meeting of 17th October 2016 was a disciplinary meeting and was not provided with the opportunity to seek representation. The complainant stated that he sought to appeal the written warning in line with the terms of his contract of employment, but no appeal was facilitated. The complainant stated that an external consultant was subsequently appointed and began an investigation into the complaints, having unilaterally decided that mediation was inappropriate, whereas the complainant was of the view that the external consultant was conducting a mediation in an attempt to resolve the issues between the complainant and his colleague. The complainant stated that historical complaints were also included in the investigation process and that the respondent and the consultant had agreed expanded terms of reference to include these historical complaints without any consultation with him.

The complainant stated that there were a number of procedural shortcomings in the process rendering the dismissal procedurally unfair. The complainant also submits that, substantively, the dismissal was excessive and disproportionate on the basis that his behaviour had not met the definition of bullying as his actions were not deliberate or a pre-determined course of action. The complainant is seeking compensation in relation to his complaint.

The complainant was dismissed for gross misconduct following an investigation and disciplinary process which upheld 14 of 17 accusations that were made against him. The complainant accepted at the adjudication hearing that he had had behaved in the manner described but was unaware at the time of the impact his behaviour was having on his colleague. It was confirmed that the complainant suffered/suffers from depression and had experienced personal tragedy and that the complainant’s colleague had also experienced the same personal tragedy in her life. It was also confirmed that prior to the events that led to the complaints, the complainant and his colleague had worked closely together and had enjoyed a positive working relationship. The complainant confirmed that the relationship with his colleague had deteriorated and his behaviour and attitude towards her had also changed. The complainant subsequently expressed a desire to resolve issues with his colleague, but mediation was deemed to be inappropriate given the nature of the complaints and the fraught personal relationship between the complainant and his colleague at that time. The external consultant confirmed at the adjudication hearing that she was engaged for the purpose of conducting an investigation into the complaints.

Procedural Issues

The complainant raised a number of procedural issues in relation to the process. While I accept that there were a number of procedural shortcomings in the process surrounding the meeting of 17th October 2016, the lack of an appeal of the written warning at that time in line with the provisions of the complainant’s contract of employment and the expanded terms of reference for the investigation without consultation with the complainant, I am not of the view that these issues are of sufficient importance to render the eventual dismissal as procedurally unfair. The dismissal was based on a finding of gross misconduct following a thorough investigation process which upheld 14 of 17 complaints that were made against the complainant. I accept the complainant was not facilitated with an appeal of the earlier written warning, but he was provided with the opportunity to appeal the dismissal and chose not to do so.

Substantive Issues

It was confirmed at the adjudication hearing that following receipt of the Investigation Report, the complainant was provided with the opportunity to submit any mitigating factors in relation to his behaviour and on the investigation that had upheld 14 of the 17 accusations that were made against him.

The respondent confirmed that on receipt of the complainant’s mitigating submission, it considered alternative disciplinary sanctions but on the basis that the complainant had no insight in relation to his behaviour, or the impact his behaviour had on his colleague, it took the difficult decision to dismiss him from the organisation for gross misconduct.

The Applicable Law

Sections 6(1) and 6(4) of the Unfair Dismissal Act provide as follows:

6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

6.(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,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The complainant was dismissed as a result of his conduct in accordance with Section 6(4)(b) of the Unfair Dismissals Act, 1977.

Gross Misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind thatno 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 sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

Band of Reasonable Responses

As to whether there were substantial grounds for the Complainant’s dismissal for gross misconduct, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

Conclusion

In all of the circumstances of this complaint, I find that the respondent acted reasonably at all times and that its decision to dismiss the complainant for gross misconduct was within the range of reasonable responses of a reasonable employer. Accordingly, I do not find that the complainant was unfairly dismissed.

Having considered the submissions of both parties and all of the evidence adduced at the adjudication hearing, I declare that the complaint of alleged Unfair Dismissal is not well founded.

Unfair Dismissal, Gross Misconduct