Complainant

Respondent

Anonymised Parties

An Employee

An Aircraft Maintenance Company

Representatives

Paul Hardy SIPTU

Mairead Crosby IBEC

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-00018858-001

02/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018858-002

02/05/2018

The Complainant commenced employment with the Respondent, an aircraft maintenance company, on 7 February 2001. The Complainant was promoted to Materials Coordinator in 2013.

The Complainant’s complaint, which is submitted under Section 8 of the Unfair Dismissals Act, 1977, relates to his dismissal, on 29 March 2018, for reason of gross misconduct. The Complainant contends that he was unfairly dismissed and is seeking redress in the form of compensation, in line with the Act.

In addition, the Complainant also submitted a claim under Section 13 of the Industrial Relations Act, 1969. The Complainant submits that he has a trade dispute which he requires to be investigated. This complaint was withdrawn at the commencement of the oral Hearing and, as a result, no consideration was given to the claim and no decision issued on it.

Background:

It was submitted that the Complainant received a letter, dated 28 October 2016, which outlined 11 issues where it was contended by the Respondent that he showed a “serious level of non-cooperation and insubordination”. It was further contended in this correspondence that the Complainant’s behaviour was having a significant effect on his co-workers and on the operation of the business. The letter concluded by informing the Complainant that he would be suspended on pay until an investigation was conducted into the matters raised.

It was submitted that an investigation panel, comprising of a senior manager from within the Respondent and an external HR Consultant, was set up and held meetings with the Complainant on 28 May 2017 and 30 June 2017. It was contended that, following those meetings, an Investigation Report was issued on 20 September 2017.

It was further submitted that, arising out of the Investigation Report, a Disciplinary Hearing was held on 26 October 2017 and 30 November 2017. The Disciplinary Hearing was conducted by a different manager from within the Respondent and by a different HR Consultant. The Complainant was issued with a report from the Disciplinary Panel on 21 December 2017. It was submitted that the report upheld nine of the 11 allegations against the Complainant and found that his conduct and behaviour constituted gross misconduct. It is submitted that the Report took into account the fact that the Complainant was in the Final Written Warning at the time and, as a result, the Disciplinary Hearing Panel recommended dismissal.

It was stated on behalf of the Complainant that, in a letter dated 12 January 2018, the Respondent’s CEO informed him that the final decision on the matter rested with him (the CEO).   It was submitted that the Complainant met with the CEO on 16 March 2018, following which he received a letter, dated 29 March 2018, informing him of his dismissal on the grounds of gross misconduct.

It is further submitted that the Respondent appealed the CEO’s decision and that the appeal was held by one of the Respondent’s Vice Presidents. According to the Complainant’s evidence, by way of a letter dated 27 June 2018, from the Appeals Officer, he was advised that his appeal had been rejected on the basis that the decision to terminate employment the grounds of gross misconduct was appropriate in the circumstances.

The Complainant’s Submission on the issues on which the Disciplinary Process was initiated:

The Complainant’s Trade Union representative made a detailed submission on each of the 11 allegations which were laid before the Complainant during the investigation and disciplinary processes. In this submission it was contended, inter alia, that some of the allegations were trivial, that they did not constitute misconduct in some cases, as two concerned poor performance rather than misconduct, that some did not happen as suggested and that some of the incidents were never put to the Complainant when they happened.

In addition, significant emphasis was placed on many of the allegations being single, unrelated incidents. The Complainant’s representative also pointed out delays which occurred between the alleged incidents and the allegations being put to the Complainant. It is contended that these delays range from 5 to 11 weeks.

In conclusion, it was submitted that the decision to dismiss the Complainant for gross misconduct was based on a series of nine allegations which included (a) leaving a meeting, (b) twice assuming that his manager had been informed that he was attending company business on dates scheduled for a medical examination, (c) failing to reply to an email, (d) not speaking to his manager when delivering a medical certificate, (e) failing to pay for lunches, which he did not eat, on two occasions and (f) being 20 minutes late for a meeting and not making an additional apology for his lateness.

The Complainant’s main arguments:

Submissions were made on behalf of the Complainant under a number of headings, as follows:

(a)    Gross Misconduct:

The first of these related to the issue of Gross Misconduct.

The Complainant’s Trade Union representative contended that the dismissal was obviously disproportionate and therefore unreasonable within the meaning of Section 6 (7) (a) of the Unfair Dismissal and Act, 1977. It was further contended that the Respondent’s Corrective Counselling and Disciplinary Procedures set out a list of examples of gross misconduct which include “breach of trust”. The Complainant’s representative pointed out that this was the ground eventually cited by the CEO in his letter of dismissal of 29 March 2018. It was contended that this ground is substantially different from the “serious level of non-cooperation and insubordination” which was cited in the letter of 28 October 2016, from the Respondent, which started off the Investigation/Disciplinary Procedure processes.

According to the Complainant’s representative, even if, which is not the case, the Complainant had accepted the allegations of misconduct, it is impossible to find an example of “breach of trust” among those allegations.

In submitting on behalf of the Complainant, his Trade Union representative referenced the Labour Court case: Kilsaran Concrete v VET [UDD1611(June 2016)]. It was contended that the within Respondent’s decision to dismiss the Complainant was not based on any example 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”, as set out by the Court in this decision in the above referenced case. On the contrary, it was contended that the decision to commence the disciplinary procedures, as set out in the letter of 28 October 2016, rested on the Respondent’s view of events over a substantial period of time and not on an instance of “very bad behaviour” sufficient in and of itself to end the employment relationship. It was therefore contended that the Complainant was not fairly dismissed for gross misconduct.

It was further contended that the Disciplinary Panel, in recommending dismissal, explicitly took into account the Complainant’s employment history, his disciplinary record and that he was on a Final Written Warning at the time. It was contended on behalf of the Complainant that none of these matters should have been of the slightest relevance to a dismissal for gross misconduct.

Specific reference was drawn to the comment in the Disciplinary Hearing Panel Report that the Complainant’s “conduct and behaviour, through his actions and inactions, when taken together constitute gross misconduct”. It was further referenced that the CEO quoted this sentence when issuing the letter of dismissal to the Complainant.

The Complainant contends that the phrase “when taken together” demonstrates that he was not dismissed for gross misconduct. It was submitted that no act justifying summary dismissal was alleged (much less accepted) and the statement by the company that it had dismissed him for a combination or accumulation of perceived infractions over a period of time is contradictory to its position that the Complainant was guilty of gross misconduct.

It was further contended that the Respondent’s procedure defines “gross misconduct” as “justifying immediate termination of employment”. It was further referenced that the procedure also provide that “the matters at issue will be presented to the employee”. However, it is contended that the Complainant was not informed that the allegations against him were considered by the company as gross misconduct until 12 January 2018, when he received their Disciplinary Hearing Panel Report.

In further submissions on this point, the Complainant’s representative referenced the decision of the Labour Court in the case Commercial State Body & A Worker[UDD1815 (February 2018)], which found that the failure of the Respondent in that case to inform the Complainant that it had deemed his actions as gross misconduct represented a flaw in the procedures.

(b)    Performance:

The second heading under which submissions were made on behalf of the Complainant related to performance.

It was stated on the Complainant’s behalf that two of the nine allegations found against him during the disciplinary investigation were not allegations of misconduct at all but were allegations of poor performance. In further submission on this point, the Complainant’s representative referred to the case of Richardson v H Williams Limited [UD17/1079], where the EAT gave guidance regarding the requirement to give warning to an employee judged to be performing incompetently.

It was submitted on behalf of the Complainant that he had a 17-year employment record with the Respondent without any performance issues emerging. In supporting this point, the Complainant’s representative referred to the case of Google Ireland v Berthold [UD2147/2011]. It was submitted, with regard the aforementioned case, that, despite the fact that the employee was dismissed after six months of performance management, during which time she was aware that her performance was under scrutiny and that her employer required improvement, the dismissal was, nevertheless, found to be unfair.

The Complainant’s representative stated that no performance improvement process, of the type envisaged in both of the cited cases, was initiated in respect of the Complainant.   As a result, it was contended on behalf of the Complainant that, even if the allegations (which are not admitted) had been treated properly by the company, that is to say as performance issues, dismissal in respect of these will nevertheless have been unfair.

(c)     Absence of Corrective Counselling:

The next aspect on which the Complainant’s representative made submission related to the “Corrective Counselling” process which is contained in the Respondent’s procedures.

According to the Complainant’s evidence, this phase of the procedure is mandatory when it becomes apparent that a problem is developing. It is contended that the procedure requires the manager to first counsel the employee. However, it was submitted that no such counselling was applied in the Complainant’s case.

The Complainant rejected the finding of the Disciplinary Hearing Panel who, in their Report, found that the Complainant, by refusing to have informal one-to-one meetings with his manager unless he had a witness/union representative present, did not enable the Respondent to conduct the corrective counselling process. In rejecting the Panel’s findings in this regard, it was submitted, on behalf of the Complainant, that there was no general refusal to meet with his manager. In this regard, reference was made to a meeting on 5 September 2016 when the Complainant left the meeting once it became apparent to him that the meeting had been convened to discuss interpersonal issues between himself and the manager rather than the business-related matter which he understood it had been convened to discuss.

In further submission in relation to the Corrective Counselling process, it is contended that the company failed to maintain appropriate record of any counselling interventions. It is further contended that the absence of documentation indicates that, in and of itself, the mandatory step in the procedure was not followed.

In conclusion, on this point, it was submitted that, in short, the Respondent decided not to allow the Complainant the opportunity to rectify the alleged defects in his work, did not allow a reasonable time in which to affect improvement, and did not monitor his progress and reaction to such a warning. Consequently, the Complainant’s representative raised the question as to why the Respondent included the “Corrective Counselling” stage in the procedure at all.

(d)    Reliance on expired warning:

The next item raised by the Complainant as part of the submission related to a Final Written Warning which had been issued to the Complainant on 6 June 2016.

It was submitted that the decision to dismiss took place well after the 5 June 2017 expiry of the Final Written Warning. It was submitted that in his letter of dismissal, the CEO makes explicit reference to the sanction as being “active” during the August – October 2016. While it was not contended that the Respondent breached procedures by considering that expired warning in coming to its decision to dismiss, however, it was contended that it was unreasonable for the company to rely upon it.

It was further contended, in this regard, that none of the 11 allegations which led to the Complainant’s dismissal related to the allegation (alleged bullying) which had led to the Final Written warning. It was also stated that the alleged victim of bullying was not involved in the matters contained in the 11 allegations made against the Complainant’s in the letter of 28 October 2016.

While noting that the Respondent’s company procedure provides that spent warnings may be considered “in the context of the total employment history, especially where any future offences or incidents are related”, it was submitted, on behalf of the Complainant, that a reasonable employer would not have taken an expired warning, for an unrelated matter, into account in coming to its decision to dismiss the Complainant.

In conclusion, on this point, it was submitted that, as the Complainant was dismissed for gross misconduct, the Disciplinary Panel and the CEO should not have felt the need to rely on the Complainant’s previous disciplinary record at all.

(e)    Disciplinary Hearing Panel:

The final aspect of the Complainant’s substantive arguments against his dismissal, related to matters pertaining to the Disciplinary Hearing Panel.

In the first instance, the Complainant’s representative noted that the Disciplinary Hearing Panel Report was of unusual length and documents, among other things, a further investigation conducted by the Disciplinary Panel in relation to Allegations 2, 7 (not upheld) 8, 9, 10 and 11. It was further submitted that there had been no indication from the Respondent that they regarded the initial Investigation Report as being inadequate in any way in its task of finding facts.

The Complainant’s representative noted that the Respondent had adopted a two-stage process involving a separation of the personnel conducting the initial investigation from the personnel taking the disciplinary decision. It is contended that in doing so the Respondent acted unfairly by relying on the Disciplinary Hearing Panel report, as the CEO did, in circumstances where the Disciplinary Panel had overstepped their bounds and usurped the role of the investigation panel.

It was further contended that the Respondent may have taken this approach because they viewed the Investigation Report as providing insufficient support to a decision to dismiss, especially as no facts detrimental to the Complainant were found in respect of Allegation 11.

In concluding the submissions on behalf of the Complainant, his Trade Union representatives sought a determination that the Complainant was unfairly dismissed and sought redress in the form of compensation for financial loss, including payment in lieu of notice.

Background:

The Respondent’s representative provided a detailed background to the claim submitted by the Complainant. In relation to the facts of the claim, such as dates etc, the Respondent’s evidence was ad idem with that submitted by and on behalf of the Complainant. On that basis, the following is a summary of the key points noted by the Respondent in their submission in relation to the background of the case.

It was submitted on behalf of the Respondent that, on 28 October 2016, the Complainant was suspended on full pay pending the outcome of an investigation into a series of incidents that occurred between August and October 2016. It was further submitted that the Complainant was provided with a copy of the disciplinary procedures and advised that the investigation could result in disciplinary action up to and including dismissal.

It was further submitted that the Investigation, which was conducted by an external HR Consultant and an internal Production Manager, commenced in May 2017. The Investigation Report issued to the parties on 20 September 2017. It was also submitted that the Complainant was represented throughout the proceedings.

According to the Respondent’s evidence, the Investigation Report was provided to the Respondent’s Head of Human Resources in October 2017, who then referred the matter to a disciplinary hearing. A disciplinary panel, consisting of a senior manager from within the Respondent’s organisation and another external HR Consultant, was set up to   conduct a disciplinary hearing. The Disciplinary Hearing Report issued on 21 December 2017. The report, which is 106 pages in length, upheld nine of the 11 complaints against the Complainant.

It was submitted that the overall conclusion of the Disciplinary Hearing Panel was that the Complainant’s conduct and behaviour constituted Gross Misconduct and, in that context, recommended dismissal. Based on the outcome of the Disciplinary Hearing Report, the CEO wrote to the complainant on 12 January 2018 offering him a final opportunity to submit any additional comments for consideration before the CEO made a final decision on the matter.

According to the Respondent’s evidence, the Complainant was afforded an oral hearing on 16 March 2018 and was also given the opportunity to submit additional documentation, which he did. By way of letter dated 29 March 2018, the CEO wrote to the Complainant and advised that he considered the latter’s conduct and behaviour had resulted in a serious breach of trust and therefore left him with no alternative but to dismiss the Complainant on the grounds of gross misconduct.

It was further submitted that the Complainant appealed the dismissal decision by way of written submission to an Appeals Officer, based in the Respondent’s office overseas. The Respondent’s evidence shows that the Appeals Officer upheld the decision to dismiss and advised the Complainant accordingly on 27 June 2018.

The Respondent’s substantive position:

The Respondent’s representative submitted that the Complainant was dismissed by reason of misconduct. It is further submitted that, accordingly, his dismissal was not unfair as it resulted wholly from “the conduct of the employee”, in accordance with Section 6 (4) (b) of the Unfair Dismissal as Act, 1977, as amended.

The Respondent submitted that, following a thorough investigation and disciplinary hearing, the Complainant was adjudged to have engaged in behaviour which was classified as being “serious insubordination and non-cooperation”. It was further submitted that this behaviour had a significant effect on the Complainant’s colleagues and the operation of the business and on the customers of the Respondent.

The Respondent submitted that the significant negative consequences of the Complainant’s prolonged actions and damage to the business/customers cannot be underestimated. Consequently, it is submitted that in light of this damage and harm the dismissal was a justified response in the circumstances. The Respondent further submitted that the principles to be applied in cases of gross misconduct have been clearly established, over time, in case law. In particular, the Respondent referenced the case of Looney & Co v Looney, UD 843/1984 in relation to the standards to be applied in such cases.

The Respondent submitted that their action, in taking the decision to dismiss the Complainant, was in accordance with what any “reasonable employer” would have done in the circumstances.

The Respondent stated that, as a result of the Complainant’s behaviour, the relationship of trust required for the proper performance of his duties no longer existed. It was further submitted that trust and confidence are fundamental requirements of any employment relationship and, when these components are not present, the employment relationship can longer continue. According to the Respondent’s evidence, the offence of “Breach of Trust” is specified in the Respondent’s disciplinary procedure as gross misconduct.

The Respondent submitted that it is imperative that the Respondent can trust its employees. It was further submitted that the importance of trust to the employment relationship has been emphasised on many occasions in the past by tribunals considering these matters. In support of their submissions on the issue of trust in the employment relationship, the Respondent’s reference two cases where the matter was considered by the EAT. The cases referenced in this regard were AudreyBurtchaell v Premier RecruitmentInternational Ltd T/A Premier Group [UD1290//2002] and Moore v Knox Hotel and Resort Ltd, [UD27/2004].

In reference to the aforementioned cases, the Respondent submitted that, when trust has been undermined, as it has been in the within case, the employment relationship cannot be sustained. It is further submitted that when breach of trust comes about by virtue of the employee’s actions, then it is fair and reasonable, in the circumstances, for the Respondent to take the decision to dismiss.

In addition, the Respondent submitted that, in considering the appropriate sanction in this case, the Disciplinary Panel considered the company’s policies, the findings of the investigation, the gravity of the offences, the Complainant’s disciplinary record to date and any mitigating circumstances.

The Respondent further submitted that the Complainant was at all times afforded fair procedure in line with the company’s own established policy, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice.

Finally, in conclusion, the Respondent stated that, without prejudice to their position that the dismissal was fair, should the dismissal be found to be unfair, it is the position of the Respondent that the claimant contributed substantially and, therefore, he should not receive any compensation. In support of this position, the Respondent referenced the case of Murray v Meath County Council, [UD43/1978].

The Complainant was dismissed by the Respondent on the grounds of gross misconduct and on the basis that the Complainant’s conduct and behaviour had resulted in a serious breach of trust.

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“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 the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…..(b) the conduct of the employee….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator, in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish the guilt or innocence of the employee.

On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show the fair process and procedures were applied when conducting the disciplinary process.

In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

With regard to the case in hand, the Respondent presented compelling evidence in relation to the comprehensive nature of the process and procedures which they applied. The evidence adduced in this regard shows that the process commenced when the Complainant received a letter, dated 28 October 2016 from a senior manager in his direct reporting line. This letter advised that several incidents which have taken place during August, September and October 2016, had been brought to his (the senior manager’s) attention. The incidents, which amounted to 11 in number, were set out in detail in this letter.

The correspondence concluded by advising the Complainant that the Respondent was proceeding to conduct a full investigation into the incidents/issues detailed in the letter and that he (the Complainant) was being suspended on full pay while the investigation was carried out. The correspondence also enclosed copies of the Respondent’s Corrective Counselling and Disciplinary Policies.

The evidence adduced at the Hearing shows that the Respondent appointed an Investigation Panel consisting of an in-house manager and an external HR Consultant, to conduct the investigation into the incidents set out in the letter of 28 October 2016 to the Complainant. While the investigation did not commence until May 2017, I note that the Complainant was on sick leave from 1 November 2016 to 1 May 2017 and it appears this accounted for the delay in the investigation commencing.

The Investigation Panel submitted their Investigation Report to the Head of Human Resources (HR) on 20 September 2017. The Investigation Report was then referred for a Disciplinary Hearing, which was conducted by an in-house Head of Department and by an external HR Consultant, the latter being a different individual than had been involved in the earlier Investigation process.

The Disciplinary Panel issued their Report on 21 December 2017. The Report, which was submitted in evidence, amounted to 106 pages. The Report clearly demonstrates that the Disciplinary Panel conducted a very detailed and comprehensive assessment, not just of the incidents which were the subject matter of the earlier Investigation, but of a series of issues raised by the Complainant, including his contention that the first Investigation was flawed.

The Disciplinary Panel reached an overall conclusion to the effect that the Complainant’s “conduct and behaviour, through his actions and inactions, taken together, constitutes Gross Misconduct”. Based on that conclusion the Disciplinary Panel issued a recommendation to the effect that it was reasonable for them to conclude that “the necessary level of communication, cooperation and trust is no longer present for the employer – employee relationship to continue in a satisfactory manner, and taking into account the findings of each of the 11 allegations, the Complainant’s employment history, training for the role, disciplinary record, and that the Complainant was on a Final Written Warning at the time which is under review, the Disciplinary Hearing Panel therefore recommend dismissal.”  

Following receipt of the Disciplinary Hearing Panel Report, the Respondent’s CEO wrote to the Complainant on 12 January 2018, advising that the final decision with regard to the disciplinary process rested with him. The CEO further stated that, before reaching a final decision on the matter he wanted to offer the Complainant the opportunity to submit any additional written comments for consideration.

The evidence adduced at the Hearing shows that the Complainant made two written submissions and was also afforded an oral hearing on 16 March 2018. By way of letter dated 29 March 2018, the CEO provided a detailed assessment as to the considerations he had made in reaching his decision, which was dismissal on the grounds of gross misconduct . The CEO went on to state that he believed the Complainant’s “conduct and behaviour has resulted in a serious breach of trust and therefore has left me with no alternative, but to reach this determination”.

The final stage of the process consisted of an appeal, in writing, to a senior manager in one of the Respondent’s international offices. By way of letter dated 27 June 2018 , the Appeals Officer set out a detailed rationale for his decision, which was to uphold the decision to terminate the employment.

Having carefully considered all aspects of the process, as conducted by the Respondent, I can only conclude that the Complainant was provided with a very comprehensive disciplinary process. The Complainant was afforded fair procedure and the normal principles of natural justice, including representation at each and every stage, clearly applied throughout the process.

In reaching the above conclusion, I have carefully considered all of the points raised by and on behalf of the Complainant in relation to concerns pertaining to some aspects of process. For instance, it was submitted that it was unreasonable for the Respondent to rely on the Final Written Warning which issued to the Complainant in June 2016. I note this sanction was the subject of a WRC complaint in 2017, the outcome of which confirmed that the warning expired on 5 June 2017.

Notwithstanding this, I am satisfied that the sanction was active during the period of time (i.e. August to October 2016) when the alleged incidences, on which the disciplinary process was initiated, took place. The fact that the investigation of the August/October 2016 incidents was delayed due to the Complainant’s absence on sick leave and, as a result, that the Final Written Warning had expired by the time the investigation effectively commenced, does not, in my view, alter the fact that, within four months of being placed on a Final Written Warning, the Complainant engaged in alleged actions/behaviours, which the Respondent considered worthy of investigation under the disciplinary procedures.

Taking all of the above into consideration, I am of the view that it was not unreasonable for the Disciplinary Hearing Panel to consider the issue of the Complainant’s Final Written Warning in the context of their deliberations with regard to the final sanction. I find this to be particularly so given that the warning in place at the time was a Final Written Warning. The gravity, nature and intent of such a sanction and its potential implication in the event of further disciplinary action being contemplated during the lifetime of the sanction, are well established and accepted in the context of workplace disciplinary matters.

The Complainant also raised an issue in relation to the manner in which the Disciplinary Hearing Panel dealt with the report submitted by the Investigation Hearing Panel. In this regard it was contended that the Disciplinary Panel overstepped their brief and had usurped the role of the Investigation Panel. It is clear from the Disciplinary Hearing Report that the Panel conducted very detailed consideration of all the issues, including the Report from the Investigation Panel. In a context where the Disciplinary Panel was tasked with considering the matter from a disciplinary perspective and with making findings/recommendations with regard to sanctions, I believe it to be incumbent upon them to engage in whatever considerations they felt necessary/appropriate in order to provide the Complainant with a fair and thorough process.

In any event, the final say in the matter did not rest with the Disciplinary Hearing Panel. The final decision rested with the CEO and, while he was guided by the Disciplinary Panels Report, I am satisfied that he also conducted a full and fair consideration of the matter before reaching the final decision.

Therefore, taking all of the above into consideration I am satisfied that the process and procedure afforded by the Respondent to the Complainant was both fair and comprehensive in nature.

Notwithstanding the above conclusion that the process/procedure extended to the Complainant was fair, I also carefully considered the proportionality of the sanction imposed, which was dismissal on the grounds of gross misconduct resulting in a breach of trust in the employment relationship between the Respondent and the Complainant.

The Complainant’s representative provided a detailed submission in relation to each of the 11 allegations which were the subject to the investigation. Among the issues raised in this regard was the fact that many of the incidents were single, once off issues. It was also pointed out that some of the issues could not reasonably be considered as “misconduct”, for example when the chair on which the Complainant had been sitting on was knocked over as he left a meeting abruptly. Another issue raised related to the classification of some incidents as “misconduct” when they were, in effect, “performance” matters. It was also contended that some issues had not been put to the Complainant at the time they happened.

I accept that there is a certain validity to the submissions made on behalf of the Complainant that the 11 incidents/issues, as set out in the letter of 28 October 2016, were more a collective of single incidents/issues than anything else. However, it is clear from the evidence adduced that the Respondent regarded them more as a pattern of behaviour rather than as a single, isolated and unrelated incidents and that they saw them in a broader context as indicative of an inappropriate or disrespectful attitude from the Complainant towards management.

Having carefully considered all the evidence presented, I am satisfied that the relationship between the Complainant and management, in particular with his direct line managers, appears to have deteriorated quite significantly in the latter half of 2016. The evidence further suggests that, while some of the incidents/interactions, contained in the 11 allegations, may not have had great significance as individual events, the Complainant’s behaviour, which comes across as somewhat confrontational and discordant in relation to these matters, led his management to categorise these as non-cooperation and insubordination. In fact, the Disciplinary Hearing Panel referred, in their Report, to their first-hand experience, during the conducting of their investigation, of the types of behaviours that were the subject matter of what they were investigating.

Further in this regard, I note, with interest, the evidence presented by the CEO at the oral hearing. Taken in conjunction with his detailed letter of dismissal to the Complainant and the supporting documentation including meeting records etc, I’m genuinely of the view that, despite everything that had gone before, including the Disciplinary Hearing Report, the CEO was open to considering a different decision had the Complainant being willing to show some acknowledgement that his behaviour may have been inappropriate and/or to show some remorse in this regard.

It is clear from the evidence produced that, despite the Complainant’s contention, at the meeting with the CEO, on 16 March 2018, that he wanted to return to work and put the issues of the past behind him, his responses the questions posed by the CEO at that meeting played a significant role in the latter reaching the conclusion that the trust and confidence necessary for the employment relationship to continue was not present. In fact, the Complainant himself gave credence to this view when, in his written submission to the Appeals Officer, on 31 March 2018, when he states that he could not return to work while the current management team were still in place. Further in this regard, the inappropriate or unprofessional nature of some of the Complainant’s correspondent to various members of the Respondent’s management was noted.

Taking all of the above into consideration and having carefully reviewed all of the evidence adduced, I find that the Respondent’s conclusion that, based on the actions and behaviour of the Complainant, the continuation of the employment relationship was no longer tenable was neither unreasonable or disproportionate in the circumstances.

Consequently, I find that the Complainant’s dismissal resulted wholly or mainly from his conduct and/or behaviour and in line with Section 6 (4) (b) of the Unfair Dismissals Act, I therefore conclude that the dismissal is not unfair.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, set out my decision/recommendation in relation to the Complainant’s complaint/dispute as follows:

CA-00018858-001 (Unfair Dismissal)

I find that his claim for unfair dismissal is not well founded and is, therefore, rejected.

CA-00018858-002 (Industrial Relations)

This complaint was withdrawn at the commencement of the oral Hearing, no recommendation issues.

Unfair Dismissal

Gross Misconduct

Breach of trust

Industrial Relations