ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013713

Parties:

Complaints:

Date of Adjudication Hearing: 15/10/2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred a complaint of unfair dismissal along with three ancillary complaints to the Workplace Relations Commission (WRC) on 13th March 2018. In accordance with Section 8 of the Unfair Dismissals Acts 1977-2015 and Section 41 of the Workplace Relations Act 2015, following referral to me by the Director General, I inquired into these complaints and gave the Parties an opportunity to be heard by me and to present any relevant evidence. The Complainant was represented by SHRC Limited whilst the Respondent was represented by Adare Human Resource Management. This case was initially dealt with on a case management basis on 2nd July 2018 and evidence was heard on 15th October 2018. The Parties’ respective positions are summarised hereunder followed by my findings & conclusions and decisions. All evidence, written submissions, supporting documentation and law presented by both Parties have been taken into consideration. In particular, I have read all through the copious background documentation furnished and it is apparent that an enormous amount of work on this case has been undertaken by all concerned.

Background:

The Complainant was employed by the Respondent pharmacy business from 13th September 2010 until her dismissal for gross misconduct on 17th October 2017, upheld on appeal on 13th February 2018. She referred a complaint of unfair dismissal under the Unfair Dismissal Acts 1977-2015 and sought reinstatement / compensation in respect of same. She also brought ancillary complaints seeking compensation for her contractual notice period and underpayment of wages for the period of her suspension on full pay under the Payment of Wages Act 1991. She further sought compensation for a shortfall in her annual leave pay under the Organisation of Working Time Act 1997. The Respondent refuted the complaint of unfair dismissal and payment in lieu of notice but conceded sums of €900 and €50 respectively, as being due in respect of the latter two complaints.

CA-00017912-001 - Unfair Dismissal under the Unfair Dismissals Acts

Summary of Respondent’s Case:

As it is common-case that the Complainant was dismissed on 17th October 2017, the burden/onus of proving that her dismissal was fair rests with the Respondent and therefore evidence on its behalf was given first. Detailed written submissions were supplemented with oral evidence from the various decision-makers involved in the investigation and disciplinary processes giving rise to her dismissal. The Co-directors (a husband and wife, hereinafter ‘Mr A’ and ‘Ms B’) outlined the background to the Respondent’s pharmacy business which had a number of branches and 25 staff. The Complainant commenced her employment with the Respondent on 13th September 2010 as a Sales Assistant and had been elevated to a Pharmacy Technician at the time of her dismissal.

The Complainant’s contract of employment and the Respondent’s disciplinary policy as furnished stated that an employee may be dismissed for gross misconduct. The disciplinary policy provided a non-exhaustive list of behaviours which may be considered to constitute gross misconduct including: “Serious breaches of confidentiality.” and “Serious failure to adhere to an agreed workplace procedure or other agreed terms of employment.” On 19th May 2017, Mr A notified the Complainant in writing that she was the subject of a bullying complaint by another employee which was being investigated by the Respondent’s external HR Consultant under its Dignity at Work - Anti-Bullying Policy & Codes of Practice. The letter stated: “The details of the specific allegations provided are for your information and that of any representative you consult with in this regard. I must instruct you that this is not for publication or discussion beyond that, and that failure to comply with this instruction may render you liable to disciplinary proceedings on that account.” The Policy document also provided: “All employees involved in an investigation must respect the need for confidentiality - failure to do so may represent a serious disciplinary offence.” The investigation terms of reference further stated: “The need for confidentiality will be highlighted to all parties involved as well as any witnesses.” Correspondence sent to the Complainant in relation to the investigation also highlighted the utmost importance of confidentiality by expressly stating: “Please be assured that confidentiality in relation to all matters concerned with the investigation will be maintained insofar as is reasonably practicable. In this regard, you are instructed not to contact any of the persons (including potential witnesses) about this matter. Failure to comply with this instruction may seriously hinder the Organisation’s ability to investigate or take action on the complaint and may render you liable to disciplinary proceedings.” The HR Consultant further reminded the Complainant of the need for confidentiality during the various investigatory meetings as noted in the various minutes furnished.

In the course of the investigation, the Complainant was alleged to have breached the confidentiality requirements as set out above by (1) forwarding a confidential email from the HR Consultant to the Complainant and notes of an investigation meeting with the employee who had made the bullying complaint to another colleague, Ms C on 10th July 2017. (The HR Consultant had expressly stated in her email to the Complainant: “As noted within the terms of reference, I would ask you to keep the notes confidential and not share these notes with any other party.”); (2) texting Ms C on a number of dates in relation to the investigation and (3) personally approaching Ms C about her non-response to these entreaties (which Ms C had reported as being confrontational) on a number of occasions.

Mr A gave evidence in relation to his role as Investigator of these allegations with reference to the documentation furnished. He explained that he had assumed this role in circumstances where he was not involved in the day-to-day running of the branch in question and it was felt that the Respondent’s HR Consultancy would be prejudiced given that the company was already dealing with the bullying complaint giving rise to these allegations. He had suspended the Complainant on full pay from 11th August 2017 for the purposes of same as confirmed in a letter enclosing three statements made by Ms C. Following a number of investigation meetings, in a report dated 21st September 2017, Mr A determined that the aforesaid communications with Ms C were in breach of the Respondent’s confidentiality requirements and contrary to the terms of reference for the investigation into the complaint of bullying and/or amounted to interference with the process.

As noted by Mr A during the investigation process, the Complainant accepted that she had breached its confidentiality requirements by forwarding the emails (including the notes from an investigation meeting) as sent to her by the HR Consultant to Ms C. When furnished with the text message exchanges, she had accepted that she had texted and/or spoken to Ms C about the investigation including telling her that she had been implicated, asking whether “she had her back” noting that she had another colleague’s back and also had said that the investigation was “ridiculous”. She maintained that this had been done in a “joking” fashion. She accepted that she had referred to the allegations made against her to other staff members when she had been feeling unwell in work on 11th July 2017. Although she disputed other aspects of her interactions with Ms C in the dispensary on 9th and 10th August 2017, she accepted that she had approached her about not responding to her texts and had had asked her whether she had received a phone call from the HR Consultant and would be attending a meeting. Mr A also noted that Ms C had not perceived their exchanges as having been made in a joking manner and viewed them as being confrontational and was upset by them. He felt that he had no alternative but to refer the matter to a disciplinary hearing in all the circumstances. He confirmed that he had mediated in a workplace dispute between the Complainant and Ms C previously which had resulted in the Complainant receiving a verbal warning. He had also been aware that the Complainant was subject to a written warning at the time.

Under questioning from the Complainant’s Representative, it was put to Mr A that given his role and prior dealings with the Parties, he had not been independent. Issues around the Respondent’s handling of the matters giving rise to the prior warnings were also raised. When asked why he had not responded to the Complainant’s emails about the performance of the employee who made the bullying complaint, he said that he had spoken to her about it and also that this was not within her remit. Issues with the factual circumstances and process were also put to him. Mr A refuted the assertion that the various warnings about confidentiality given to the Complainant did not warn of a ‘zero tolerance’ approach such that breaches could result in dismissal. When put to him, Mr A also confirmed his view that Ms C was a credible witness and was still in the Respondent’s employment.

Ms B, Co-Director and wife of Mr A then gave evidence outlining her role in the disciplinary process and the procedures adopted with reference to the documentation furnished. She confirmed that the Complainant had attended a disciplinary hearing with her Representative on 28th September 2017. Ms B had been assisted by a different representative from the HR Consultancy. Ms B had furnished her findings to the Complainant for her response before making her decision. The Complainant had written to Ms B seeking to put the alleged breaches of confidentiality in context. She had asserted that she had been good friends with Ms C at the material time and that Ms C had been critical of the employee who had made the bullying complaint as evidenced by WhatsApp messages furnished. The Complainant had therefore felt she could confide in Ms C and had presumed she would be her employee representative noting that the sharing of information with a representative was permitted. She also questioned Ms C’s credibility given their ensuing friendly exchanges. She also explained that she had been stressed out by the process and the length of time it had taken without any updates. In a letter dated 17th October 2017 from Ms B setting out her findings and the Complainant’s responses, she confirmed the Respondent’s decision to dismiss the Complainant for gross misconduct effective from that date. Most of the findings were based upon the Complainant’s own admissions as to communications with Ms C about the investigation process. Given that another colleague had already been confirmed as her representative, she had not found it credible that the Complainant had shared details of the investigation with Ms C in the expectation that Ms C would be her representative. The letter also cited numerous text messages from the Complainant to Ms C referring to the investigation process including asking “…do you have me back?” and “…no messing” on 10th July 2017 and “…did you only say we discussed going to meeting and no other details???” on 10th August 2017. Ms B rejected the Complainant’s explanation that it was “…all a big joke” and concluded: “Your conduct in terms of interference in a workplace investigation and a serious breach of confidentiality constitutes gross misconduct, as set out in our Disciplinary Procedures and has resulted in an irreparable breach of trust in you…” Ms B further noted that the Complainant was subject to a written warning dated 19th December 2017 at the material time which required an improvement in her conduct and noted: “…your interactions with patients, colleagues and any other person you come into contact with in the course of your work should be in no way confrontational, either on the phone or in person.” Ms B contended that she had been removed and impartial and had afforded the Complainant a fair process. She also confirmed that she had formed the view that there were no alternatives to dismissal in the circumstances and all mitigating circumstances had been considered. The Complainant’s Representative questioned Ms B as to her HR expertise, impartiality and process adopted.

The Complainant availed of an appeal against the Respondent’s decision to dismiss her. An independent HR Consultant was appointed as Appeals Officer and gave evidence outlining his role and conduct of the appeals process with reference to the documentation furnished. He outlined his extensive HR credentials and confirmed that he had accepted the role strictly on the basis that he would be completely independent. He confirmed that he had held a number of meetings with the Complainant and her Representative and had also held meetings with the other witnesses including Ms C. He had ensured that the Complainant had been furnished with all witness statements and had been afforded an opportunity to respond. He confirmed that he had remained impartial and open-minded throughout and had listened to everyone very carefully and had analysed and weighed up all of the documentation and evidence in the context of the work history and friendships involved. He had considered Ms C to be a credible witness and had asked himself would a neutral witness have felt pressurised by the communications from the Complainant in respect of which the answer was “yes”. He confirmed that he had considered all of the grounds of appeal as summarised in his report dated 13th February 2018. Having reviewed all the evidence and documentation, he had arrived at his conclusions as outlined therein and upheld the dismissal. Specifically, he found that the confidentiality requirements had been clearly spelt out to the Complainant and there was clear evidence of repeated breaches of confidentiality in her communications with Ms C without any evidence that they constituted a joke. Although not expressed in his report, he confirmed that he had considered alternatives to dismissal. Even taking the mitigating circumstances into account, given the immense personal pressure that had been brought to bear, he had felt that that the Complainant’s conduct was so serious that it fell within the category of gross misconduct. He accepted that he had inadvertently deleted a recording of one of their meetings but confirmed that detailed notes had been taken and minutes agreed. Under questioning, he refuted an assertion that he had said that as an experienced HR practitioner, he had never heard of one alleged breach of confidentiality resulting in the dismissal of a long-term employee and attributed this comment to the Complainant’s Representative. He was also questioned about the appeal process and whether he had adequately addressed all of the evidence. No further material evidence was elicited.

In submissions, the Respondent contended that the Complainant’s dismissal resulted wholly from her conduct falling within the provisions of Section 6(4)(b) of the Unfair Dismissals Acts and therefore must be deemed not to be unfair. In addition to breaching the significant number of explicit confidentiality requirements of the investigation into the bullying complaint against the Complainant, it was contended that her blatant disregard for compliance with same constituted an irreparable breach of the implied term of ‘trust and confidence’ which goes to the root of an employment contract as affirmed in Berber -v- Dunnes Stores (Unreported Supreme Court Judgement, 12th February 2009). Therefore, the Complainant’s dismissal was fair, proportionate and warranted. In terms of the test to be applied when determining whether the dismissal was justified, reliance was placed on Allied Irish Banks -v- Purcell (2012) 23 ELR 189 which referred to the dicta of Lord Denning in British Leyland UK (Ltd) -v- Swift Court of Appeal (1981) as follows: “The correct test is was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another might reasonably take a different view.” It was further submitted that it is not for the WRC to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the Respondent to make the decision to dismiss the Complainant as per Looney & Co. Ltd -v- Looney UD 843/1984. Further reliance was placed on Hennessy -v- Read & Write Shop UD 1626/2013 as setting out the approach to be adopted in cases relating to misconduct and the requirement to apply a test of reasonableness to (1) the nature and extent of the enquiry carried out by the Respondent prior to the decision to dismiss the Complainant and (2) the conclusion arrived at by the Respondent based on the information resulting from such inquiry that the claimant should be dismissed. Overall, it was submitted that the Respondent met the requisite tests and as the Complainant’s dismissal was fair, this complaint should be dismissed.

Summary of Complainant’s Case:

The Complainant described herself as being employed by the Respondent as a Retail Manager at the material time of her dismissal. Whilst she did not dispute many of the facts giving rise to her dismissal as outlined on behalf of the Respondent, she presented an entirely different perspective and gave oral evidence supplementing her detailed complaint form and written submissions. She confirmed that by letter dated 19th May 2017, the Respondent had advised her that a recently hired employee whom she had been asked to train had made a formal complaint of bullying against her and that a formal investigation would be conducted. In a letter dated 26th May 2017, she had responded to the allegations. She also highlighted that she had raised concerns about the employee concerned in emails to Mr A as furnished and he had not responded. She accepted that she was informed on a number of occasions that a breach of the confidentiality requirements would be a serious disciplinary matter but not that a single breach could result in dismissal. She contended that she had adhered to the confidentiality requirements with one exception and this had to be put into perspective. On 10th July 2017, the HR Consultant appointed to investigate the complaint emailed her notes of an investigation meeting with the employee who made the complaint against her. She had been totally shocked and sickened by what she regarded as a number of false allegations in the employee’s statement which she referred to as being “scurrilous”. That same evening, she had emailed a copy of those notes to a colleague, Ms C, whom she thought she could rely on as she was both a friend and a confidante, stating words to the effect: “You won’t believe what she’s saying - my career is falling apart.” At this stage she did not know who the witnesses were and was also of the view that Ms C would be her employee representative. The following day, she was very sick at work as a consequence and was given prescription medicines to ease her anxiety and nausea. She had told a manager and another colleague why she was so upset. Over the next couple of weeks, she had friendly communications with Ms C but none which concerned the investigation. She confirmed that she had asked Ms C if she “had her back” and had questioned her loyalty but in a “joking” manner. As part of the bullying investigation she met with the HR Consultant on 13th July 2017 and was accompanied by another colleague. The HR Consultant also met with other staff involved as part of the investigation. The Complainant had written to the HR Consultant expressing her concern about the lack of inclusion of her requested amendments into the notes of their last meeting.

When the Complainant had been on annual leave in June 2017, she exchanged hundreds of text messages with Ms C but when Ms C was on annual leave in early August 2017, for no apparent reason, she stopped responding to the Complainant’s texts. When Ms C came back from leave on 9th August 2017, the Complainant enquired as to why she had not replied but she would not tell her. It subsequently materialised that Ms C had contacted Mr A and the HR Consultant investigating the bullying complaint alleging that she felt pressurised by communications from the Complainant. On 11th August 2017, Mr A wrote to the Complainant to inform her that she was being suspended on full pay pending an investigation into a breach of confidentiality. On 15th August 2017, she attended an investigation meeting with Mr A accompanied by an unrelated colleague. On 1st September 2017, the HR Consultant issued her report in relation to the bullying complaint, in response to which the Complainant raised a number of issues and concerns. On 21st September 2017, Mr A wrote to the Complainant confirming that he had found that she had breached confidentiality and interfered in the investigation process into the bullying complaint and she was referred to a disciplinary process.

On 28th September 2017, the Complainant attended a disciplinary meeting with Ms B and the HR Consultant accompanied by her Representative. At that meeting, she asked Ms B to investigate issues relating to the credibility of Ms C as a witness and also to speak with another witness. However, she declined to do so and instead accepted Ms C’s contradictory evidence at face value. On 29th September 2017, the Complainant appealed the findings of the bullying investigation. On 2nd October 2017, the Complainant wrote to Ms B setting out her responses and key points in relation to the allegations as already outlined. On 17th October 2017, she attended a meeting about the outcome of the disciplinary process with Ms C and the HR Consultancy representative where she was informed that a decision had been made to dismiss her effective from that date. The reasons given were confirmed in writing on the same date, being that she had breached confidentiality and had interfered with the investigation process by putting pressure on Ms C. On 24th October 2017, the Complainant wrote to Mr A setting out the grounds for her appeal against the decision to dismiss her. An independent HR Consultant was appointed to hear the appeal. He met with the Complainant and her Representative on a number of occasions. On 13th February 2018 he issued his findings upholding her dismissal without addressing any of the grounds of appeal put forward.

The Complainant referred this complaint of unfair dismissal to the WRC on 13th March 2018. The Complainant confirmed that she had earned €3,723 gross monthly with the Respondent and also contended that she worked up to 55 hours per week. She outlined her efforts to mitigate her losses and sought reinstatement and/or compensation for her losses to date and future loss of earnings. She confirmed that she is the main earner in her household and after subsisting on Social Welfare briefly, availed of agency and other work. She contended that she was still at a significant loss as a consequence of her dismissal which she estimated at approximately €20,500 per annum.

Whilst the Complainant had contended in her complaint form that she had an exemplary working record with the Respondent, she also accepted that she had previously been subject to a verbal warning arising from an earlier “silly falling out” with Ms C, but they had put their differences aside. She also accepted that at the time of her dismissal she was subject to a written warning arising from a complaint of rudeness from a customer, details of which were furnished. The Respondent’s Representative questioned her on a number of matters including her characterisation of the breaches of confidentiality and her text message exchanges with Ms C as being a “joke” between friends. Whilst she accepted that she had breached the investigation confidentiality requirements, this had to be put in context and she had reached out to Ms C as a friend when she had no other support at the time. She also confirmed that she had done occasional agency and other work outside her employment as per her P60’s for 2016 & 2017 and the Respondent was aware of same.

The Complainant’s Representative submitted that her dismissal for gross misconduct was both substantially and procedurally unfair. He pointed out that the alleged breach of confidentiality when she had emailed the investigation notes to Ms C on 10th July 2017 occurred at a time when she was under considerable stress following receipt of very damaging allegations. Her main communication was with a person who was, at the time, a close confidante. Although she had been warned previously that a breach of confidentiality was a serious disciplinary offence, she was not advised that it could lead to dismissal. It was denied that there had been any attempt to exert pressure on any witness. The investigation was flawed by a failure to take all of the evidence into account. The disciplinary hearing was flawed in that the wife of the investigator was not an appropriate person to conduct it, vital evidence was ignored and Ms C’s credibility was accepted at face value. The appeal was also flawed by the failure to consider the grounds of appeal, the issue of contradictory evidence was not addressed and the finding was inconsistent with the views expressed by the Appeals Officer. The severity of the disciplinary action was disproportionate and excessive in all the circumstances.

Findings and Conclusions:

It is necessary to examine the factual matrix giving rise to this complaint of unfair dismissal in light of the applicable statutory provisions and caselaw. Section 6 of the Unfair Dismissals Acts provides the legal framework. Whilst Section 6(4)(b) expressly lists the grounds where dismissal of an employee shall not be deemed to be unfair including dismissal wholly or mainly from the conduct of the employee, Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for an Adjudication Officer to have regard for “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” Along similar lines to the aforementioned caselaw, the High Court in JVC Europe Ltd -v- Panisi (2011) IEHC 279, aptly summarised this legal framework as follows: “The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify dismissal.” In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: “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.” It is also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. (See Re: Haughey (1971) IR 217). In particular, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures. In terms of weighing up the substantive issues leading to the dismissal and the fairness of the procedures adopted, the correct approach is to consider both together as per Iceland Frozen Foods -v- Jones (1983) 1 ICR 17.

Where a question of unfair dismissal for misconduct is in issue, in its judgement in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137, the High Court provided a list of ‘premises’ which must be established to support an employer’s decision to terminate employment, being as follows:

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

2. 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.
3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
5. 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.”

To summarise the legal position, my role is not to conduct a further factual investigation and substitute my own judgment for that of the employer but rather to objectively access whether the decision to dismiss the employee was reasonable for that particular employer in the circumstances. Based upon the following reasoning, I am satisfied that the Respondent has discharged the onus of proving that the Complainant’s dismissal was both substantially and procedurally fair in this case:

1. I am satisfied that the Respondent had written disciplinary procedures which had been furnished to the Complainant and were properly followed throughout the process giving rise to her dismissal.
2. I also had the opportunity of hearing from all of the decision-makers who partook in the investigation and disciplinary processes and am satisfied that they all conducted their roles properly. Specifically, I do not regard Mr A and Ms B’s involvement in the investigation and disciplinary processes as being inappropriate given that they were husband and wife Co-directors in the particular circumstances. The Respondent is a small business with finite resources and had already engaged its HR Consultancy to deal with the bullying complaint against the Complainant. As this process was running in tandem with the investigation into the alleged breaches of confidentiality into that bullying complaint investigation process, I accept that it would not have been appropriate for the same HR Consultant to investigate both matters. Mr A and Ms B were also removed from the day to day running of the branch in question and had previously shown considerable latitude towards the Complainant’s previous transgressions. I was impressed with the manner in which they met these complaints and efforts they made to ensure a fair process throughout as evidenced by the detailed minutes furnished. As an independent HR Consultant had been appointed to deal with the appeal, I am satisfied that there were sufficient checks and balances in place to ensure due process. Having read through all the minutes of the various appeal meetings and based on the evidence adduced, I am further satisfied that the Appeals Officer went to extensive efforts to ensure a fair appeal process. Whilst he may have concurred with a comment from the Complainant’s Representative that he had never heard of one alleged breach of confidentiality resulting in the dismissal of a long-term employee, this could not reasonably be construed as indicating a final view.
3. The facts were not substantially in dispute but rather the Complainant had sought to put the alleged breaches of confidentiality in context on the basis that she had confided in Ms C as a friend and confidante and they were exchanged in a “joking” manner. She clearly felt betrayed when after a period of acquiescing in discussion about the bullying complaint for a period, Ms C reported their communications as constituting breaches of confidentiality and feeling pressured leading to a further investigation and ultimately her dismissal. Even taking the Complainant’s evidence in its best light (including the stress she felt at the time and reliance upon Ms C as a friend and confidante), given the number of communications about the investigation with Ms C and persistent nature of same, I am satisfied that it was objectively reasonable for the Respondent to view her conduct as constituting a serious breach of confidentiality amounting to gross misconduct. Ms C’s credibility aside, I am further satisfied that there was sufficient evidence before the decision-makers to disregard the Complainant’s contention that the text exchanges were exchanged in a joking manner.
4. I am further satisfied that the Complainant could not have been under any illusion that such conduct could potentially lead to her dismissal where she had been furnished with numerous written notices confirming the importance of upholding the confidential nature of the investigation process into the bullying complaint with breaches of same giving rise to disciplinary proceedings. Furthermore, the disciplinary policy provided a non-exhaustive list of behaviours which may be considered to constitute gross misconduct including a “Serious breaches of confidentiality”.
5. I am therefore satisfied that the sanction of dismissal was an objectively reasonable response to the Complainant’s conduct and/or within the range or band of reasonable responses to her conduct. Whilst ideally this should have been expressly stated, I am further satisfied that both Ms B and the Appeals Officer adequately considered alternatives before finding dismissal to be the appropriate sanction. Ms B was clearly alert to alternative sanctions given that the Complainant had been issued with a written warning in respect of a prior disciplinary matter. It was also clear that both decision-makers had formed a view that the conduct was of such a serious nature that it constituted gross misconduct giving rise to an irreparable breach of trust, such that it could not be addressed through any alternative means other than by dismissal. In all of the circumstances, I do not consider it objectively unreasonable for the Respondent to regard this conduct as an irrevocable breach of trust and confidence. Nor was it the case that the Complainant had an unblemished record given the prior verbal warning and existing written warning. Whilst this process and the financial consequences of same have undoubtedly been very difficult for the Complainant, it was clear from her approach throughout including downplaying her conduct at this hearing that she had not fully appreciated the seriousness such that lesser sanctions could have reasonably been considered. I am therefore satisfied that the sanction of dismissal was proportionate to the gravity of the conduct.

Overall and based upon the aforesaid reasoning, I am satisfied that the Complainant’s dismissal was both substantially and procedurally fair within the meaning of the aforesaid law and further that all of the requirements set out in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137 were met. Therefore, the Respondent has discharged the onus/burden of proving that the dismissal was fair.

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I find this complaint of unfair dismissal not to be well-founded and accordingly, dismiss same.

CA-00017912-002 – No Payment in lieu of Contractual Notice Period contrary to Section 5 of the Payment of Wages Act 1991

Summary of Complainant’s Case:

The Complainant maintained that on 17th October 2017, she was dismissed without pay in lieu of notice, contrary to Section 5 of the Payment of Wages Act 1991. She contended that as her employment contract provided that she was required to give six weeks’ notice of termination, she should have received six weeks pay in lieu of notice and sought compensation in respect of same.

Summary of Respondent’s Case:

On behalf of the Respondent, it was submitted that this is an incorrect interpretation of the Complainant’s contract of employment which in fact required the Complainant to provide six weeks’ notice in the event of terminating her contract. Therefore, the Minimum Notice and Terms of Employment Act 1973 governed the applicable notice periods where notice was an entitlement. In keeping with Section 8 of the Act, which saves an employer from liability from giving minimum notice where there is a dismissal for misconduct, the Complainant’s employment contract expressly provided: “In cases of gross misconduct the Organisation reserves the right to summarily dismiss, without notice.” The Complainant was aware of this term and as per her letter of dismissal dated 17th October 2017, she was advised that her dismissal was on the grounds of gross misconduct. Therefore, the Respondent is not liable for any payment in lieu of a notice period under either her contract or the aforesaid Act. Accordingly, this complaint is unfounded and should be dismissed.

Findings and Conclusions:

The complaint arises from Section 5(1) of the Payment of Wages Act 1991 which provides that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless provided for by statute, contract or by consent.Section 1 of the Act defines “wages” as including “any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.” In this respect, I am satisfied that on any reasonable construction, the clause relied upon by the Complainant requiring her to give six weeks’ notice in the event of termination cannot be construed as giving rise to a corresponding obligation upon the Respondent to pay her in lieu of six weeks’ notice arising from her dismissal in such circumstances. In the absence of an express contractual provision, the minimum statutory requirements apply as provided for by the Minimum Notice and Terms of Employment Act 1973. Section 4 of the Act provides for the applicable notice periods depending upon length of continuous service subject to Section 8: “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.” In circumstances where I have upheld the Complainant’s dismissal for gross misconduct as set out above, I am satisfied that no contractual or statutory obligation for payment in lieu of notice arises.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint under Schedule 6 and Section 6 of the Payment of Wages Act 1991. Based upon the aforesaid reasoning, I find this complaint not to be well-founded and accordingly, dismiss same.

CA-00017912-003 – Underpayment in respect of Annual Leave contrary to Section 20 of the Organisation of Working Time Act 1997

Summary of Complainant’s Case:

The Complainant contended that she had worked up to 54 hours a week for the Respondent but her annual leave entitlement was calculated on the basis of a 40 hour week. As this applied to five years of her employment from September 2012 until October 2017, calculated based upon an average hourly rate of €17 over a five year period, her losses equated to €4,760. The Complainant’s Representative confirmed that this complaint had not been brought at an earlier stage as she had been awaiting the outcome of the appeal into her dismissal and sought an extension of time.

Summary of Respondent’s Case:

It was conceded on behalf of the Respondent that as there was a shortfall in her pay whilst on paid suspension between 13th September 2017 and her dismissal on 17th October 2017 within the six month reference period before referral, as addressed in CA-00017912-004 below, there had been a shortfall of approximately €50 payment in lieu of annual leave due on the date of termination.

Findings and Conclusions:

Pursuant to Section 41(6) of the Workplace Relations Act 2015, jurisdiction to adjudicate on this complaint is limited to a six month period beginning on the date of the contravention to which the complaint relates, extendable to 12 months for reasonable cause under Section 41(8). Applying the relevant caselaw and in particular, Cementation Skanska -v- A Worker DWT0425 & Department of Finance -v- Impact (2005) ELR 6, I am not satisfied that awaiting the outcome of an appeal against dismissal constitutes a basis for delaying referral of an unrelated complaint and reasonable cause. As this complaint was referred on 13th March 2018, it is limited to the period of the Complainant’s employment from 13th September 2017 until her dismissal on 17th October 2017. I am satisfied that the Respondent’s concession of €50 equates to the shortfall in her annual leave for that period.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 and Section 27(3) of the Organisation of Working Time Act 1997. Based upon the aforesaid, I direct that the Respondent pays the Complainant the sum of €100 (€50 shortfall plus €50 in compensation) as being just and equitable in all the circumstances.

CA-00017912-004 – Underpayment of wages in respect of paid suspension period contrary to Section 5 of the Payment of Wages Act 1991

Summary of Complainant’s Case:

The Complainant claimed that whilst she was suspended on full pay (as provided for by the Respondent’s disciplinary procedures), she was only paid for a basic 40 hour week when in fact her normal working hours were well in excess of 40 hours. She contended that she would have worked 103 hours more than what she was paid for during her period of suspension from 11th August 2017 until 17th October 2017. Calculated at a rate of €18 per hour, this amounted to €1,854. An extension of time for reasonable cause was also sought on the same basis as set out aforesaid.

Summary of Respondent’s Case:

The Respondent conceded that there was a shortfall between the Complainant’s pay on suspension and her normal pay owing to a procedural error and a sum of €900 was calculated as falling within the six month reference period prior to referral and subject to a maximum 48 hour working week.

Findings and Conclusions:

On the same basis as set out aforesaid, I am not satisfied that there is reasonable cause to extend time for the referral of this complaint. As it was referred on 13th March 2018, it is limited to the period of the Complainant’s employment from 13th September 2017 until her dismissal on 17th October 2017 whilst on paid suspension. I accept the Respondent’s concession that €900 equates to the approximate shortfall in her pay based upon her normal lawful working hours for that period.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 and Section 6 of the Payment of Wages Act 1991. Based upon the aforesaid, I find this complaint to be well founded and direct that the Respondent pays the Complainant the sum of €900 (less any lawful deductions) in respect of the shortfall in pay whilst suspended as being just and equitable in all the circumstances.

Overall Award:

For the avoidance of doubt, the overall award of compensation herein is €1000, comprising of €100 in respect of CA-00017912-003 and €900 in respect of CA-00017912-004.

Dated:   01/08/19

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Unfair Dismissals Acts - gross misconduct - Payment of Wages Act 1991 - payment in lieu of notice and for suspension on full pay - Organisation of Working Time Act 1997 - annual leave