Complainant

Respondent

Anonymised Parties

A Business Manager

A Skills and Training company

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-00023530-001

19/11/2018

The issues in contention concern the alleged Unfair Dismissal of a Business Manager by a Skills and Training Company.

The Complainant joined the Respondent in February 2016. All went well until January 2018 when the Respondent issued a Verbal Warning to the Complainant regarding the pattern and notification of her alleged Work absences. This was effectively the beginning of a pattern of Senior Management (in particular Mr. Xk – the Operations Director) overzealous monitoring and questioning of the Complainant regarding her duties.

In May 2018 the Complainant was subjected to an Investigation (called below Investigation No1) regarding the procedures that she had or had not followed regarding the recruitment of a junior staff member and the nature of her “communications” with Mr.Xk. On the 11th June 2018 the Complainant raised a formal grievance against Mr.Xk.

The Investigation process in regard to the Junior Recruitment issue recommended (letter of 9th July 2018) that no further action was warranted.

However, the Respondent now alleged that during the first investigation matters had come to light regarding falsification/altering of emails with the purported intention of misleading the Company. In addition, a further issue had also emerged regarding an explanation for an alleged absence from the Office on the 12th July 2018. The Complainant alleged that a serious railway delay had prevented her from coming to Dublin. She had waited on the broken-down train for some hours before the train being brought back to Dundalk. This explanation was not accepted by the Respondent despite the Complainant producing Iarnrod Eireann correspondence in her support.

Correspondence was exchanged by e mail. The Complainant pointed out that the addition of what were essentially “new charges” – falsification of Records and the railway incident - was outside of procedure and totally unfair. The e mail issues were part of Investigation No 1 and could not now be re used in Investigation No 2.

None the less the Disciplinary Hearing went ahead on the 24th July. It was not possible to conclude matters at this Hearing due to the need for follow up investigations - particularly with Iarnrod Eireann. A further hearing was scheduled for the 6th September which the Complainant declined to attend. The Complainant had been on sick leave (for work related) stress for several weeks prior to this date.

The Complainant felt that the process had become completely unfair, was outside of procedures and was in effect a predetermined scenario. She did not wish to be part of a charade.

She requested the decision as soon as possible. This was communicated to her by letter of the 7th September 2018. She was dismissed on grounds of Gross Misconduct for falsifying Company E mails and the falsification of details regarding the Railway delay incident.

An Appeal was offered but after some e mails was declined by the Complainant.

In the Submissions of her Legal Advisor she pointed out that the Investigations/Disciplinary Process had been procedurally Unfair. The addition of new charges following the first Investigation was procedurally wrong. She had been cleared in the first investigation but the “rolling stone” effect had come into play – materials allegedly discovered during Investigation No 1 were now being used against her in Investigation No 2. This was unfair. If materials had been uncovered regarding alleged falsification of e mails this should have been disposed of during the first Investigation -not used to form the basis of a second Process / Hearing.

In addition, the Railway incident was minor and was covered by her written evidence from the Railway Company. She had at no time set out to wilfully mislead the Respondent in the manner suggested by the Management. An agenda had been in place against her for some time and the entire Investigation/Disciplinary process during the Summer of 2018 had been undertaken with a pre-ordained outcome.

The characterisation of her alleged mis behaviours, while completely denied, as Gross Misconduct was completely Disproportionate and outside of any normal measure of Reasonableness.

The penalty imposed of Dismissal from employment was a travesty of Natural Justice and completely Unfair.

The basic facts regarding dates etc were uncontested.

The Respondent case was based, firstly, on the firm conviction that the most fundamental basis of any employment contract, the essential Bond of Trust, had been completely breached by the Complainant. In this scenario a Dismissal is the only option open to an employer and cannot be seen as at all Disproportionate. It is well within the “Band of Reasonableness”.

Secondly the Complainant had effectively opted out of the Internal Processes by refusing to attend the 6th September Disciplinary Hearings and latter by declining to participate in any Appeal Hearing.

The Respondent had scrupulously followed good procedures, the investigations had been thorough and the Complainant was offered all opportunities to present rebuttal evidence,

The altering of e mails was a matter of physical IT records that could not be denied. This was a serious breach of good faith and trust.

The story of the Railway incident on the 12th July was bizarre to say the least. It was thoroughly investigated, and the Railway Company evidence was clear cut. Normal rail services had taken palce on the day. The putting forward by the Complainant of an exaggerated and false story to the Respondent had been a second major breach of good faith and trust.

There was no doubt that when taken with the e mail alterations it amounted to Gross Misconduct.

When combined with her non participation in the final stages of the Process it left Dismissal as the only option. It was well within the “Band of Reasonableness.”

The non-participation in an offered Appeal, post the Dismissal, was further evidence of the Complainant’s unwarranted and negative view of Employer procedures.

In summary the Dismissal was regrettable but was not Unfair. The Bond of Trust had been irrevocably broken.

3:1     The Law. Role of the Adjudicator

It is well accepted that the role of an Adjudicator is not to re run an investigation and come to his /her own conclusions in substitution for Management. The role of the Adjudicator is to examine, from the evidence presented, the employment ending process and ensure that fairness and natural justice have applied.

Taking this as accepted I heard and read considerable evidence both Oral & Written from both sides. and considered the presentations of two experienced Legal practitioners.

I came to the view that there were four key issues to considered in this case. These were

1.       Observance of basic Natural Justice in procedures.

2.       The Bond of Trust between an employee and an employer

3.       The participation /non participation of the Complainant in Company Disciplinary Procedures and the reasons for any decisions in this regard.

4.       The Reasonableness or Proportionality of the Dismissal decision – the Band of Reasonableness argument.

Taking these issues as a guideline I set out my considerations below.

3:2       Natural Justice

3:2:1       In any Unfair Dismissal situation, the guiding principle must be that of Natural Justice.

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

“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 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.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:2:2     Adjudicator comments

Regarding the written papers I could see no obvious faults in the area of Natural justice from a pure procedure - notification of meetings -presentation of evidence etc point of view.

Where I did have some concerns was the area of Representation offered to the Complainant – the Company procedures allow for a Work Place Colleague as opposed to any other expert advice – an outside Solicitor for example. Legal precedents in this area have varied but where the most severe final sanction of Dismissal for Gross Misconduct with the accompanying possible damage to reputation/prospects for re-employment etc is involved this was a weakness, I felt, in the Respondent case.

However, it was admitted in oral evidence that the Complainant waited some months post her dismissal to seek legal advice and to now put forward the case that “if only” she had had Legal advice earlier does not really stand up. This was in the consideration of why she did not lodge a formal Appeal post Dismissal but applies equally to earlier proceedings.

The second area of concern was the “Rolling Stone gathers moss” effect in using materials regarding e -mails gathered in investigation No 1 to use in Investigation No 2. It would, have been preferable to have had a much clearer line between evidence used in both Investigations.

However, Investigation No 2 was also focused majorly on the Railway Incident. Proper procedures were followed here.

3:2:3       Conclusions / Natural Justice

On overall balance I came to the view that while the Respondent Natural Justice area was not unblemished there was no major flaw that would necessitate completely dismissing the case.

3:3:1       The Bond of Trust

It is well established Legal precedent that the fundamental basis of an employment contract is a Bond of Trust between an Employee and an Employer.

In this case the situations regarding the alleged alteration in the e-mails was not in the Employee’s favour. IT Records are physical facts and the differing perspectives as to what was or was not deleted and the motivations for same was open to some discussion. On balance I had to accept the Respondent interpretation.

The Railway delays evidence was quite frankly most unusual. To suggest that the main Belfast to Dublin Rail line had a broken-down train on the line that resulted in a three-hour delay to services, that did not make for a major media story, RTE News etc was surprising. The Respondent investigated the matter thoroughly and the Railway Company confirmed that service had been normal on the day.

Of more concern was the production of alleged Rail Company correspondence by the Complainant that it now appears did not have any Official Authority or origin. The Rail company are having their own internal investigation into the origins of this correspondence.

The key issue in the Breach of Trust Argument here is that the Complainant was, from all the evidence and considering all probabilities, not truthful with the Respondent. It would appear that a version of events was being put forward by the Complainant that was, at the very least, highly incredible.

3:3:2     Conclusions/Bond of Trust

I had to come to the view that a Breach of Trust had taken place.

The e mail situation could have been subject to conflicting interpretations, but the Railway situation supported by unusual documentation, denied by Railway Management, was beyond any normal Employer/Employe interaction. Being absent for a morning might have been bad for the Employee, particularly in the ongoing context of the strained relationship here. A reasonable Employer would take the view that the Railway Story/Documentations was unnecessary and most damaging to any relationship of Trust. The evidence demonstrated, to a Reasonable observer, an attitude towards the Employer that was not conducive to a good relationship.

All evidence was properly presented, and no procedural fault could be seen.

3:4       Non-Participation in Employer/Employee Procedures.

3:4:1

In the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances.

In the case in hand the e mails from the Complainant of September the 4th 2018 are worth looking at. At 15:24 she wrote to the Respondent as follows

“Hi X

I will not be attending any more disciplinaries or investigations, I have been dragged through enough of them this year which were unjustified and dramatically affected my health.”

The Respondent Manager replied later that day (16:53) suggestion that the best course of action would be attend the Hearing and allow the process to come to a natural conclusion. The Complainant declined.

Taking the Allen v Independent case above is there a case that the Complainant was justified in withdrawing from the process.? Was there a negative Agenda towards her since early 2018?

This is a judgement call, based on the evidence presented at the Hearing and the written materials supplied, for the Adjudicator.

Having considered all the evidence, I did not think the complete withdrawal by the Complainant from the Process was warranted. The non-participation in the offered Appeal, post the Dismissal, was not helpful to her case.

At the very least she could have sought Legal advice at this stage, rather than three months later, and stalled matters. It is a fundamental flaw in her Unfair dismissal case.

The Mary Redmond quote above about the “Imperative” in Procedures is worth remembering,

3:5     Proportionality in the Penalty /Dismissal.

3:5:1

There is extensive legal Authority regarding the Principle that the Tribunal or the Adjudicator is not to substitute themselves for the Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

         “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

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

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

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

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

Guidelines as to what is “Reasonable” is considered in Hennessy v Read & Write Shop Ltd UD 192/1978 where it is stated

“in deciding whether or not the dismissal of the claimant was unfair we 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 claimant, and

2: The conclusion arrived at by the Respondent that, on the basis of the information resulting from such an enquiry, the claimant should be dismissed.

In discussions during the Oral Hearing the Respondent acknowledged that there were other lesser Sanctions possible. The Sanctions section of the Disciplinary Code was produced in evidence.

The Respondent legal representative argued that the Complainant had completely sundered the Bond of Trust. The Railway and E mail evidence was compelling. Simply put, she could not be trusted and on that basis, it was a case of Gross Misconduct warranting Dismissal. No other employer would have a different view.

Her Representative argued that the e mail situation was open to a variety of interpretations and that the Railway incident was not anywhere near the point of seriousness to warrant losing one’s employment. Gross Misconduct is normally for cases of actual physical assault, being engaged in serious fraud or serious damage to the Employer’s business or reputation. None of these situations applied here.

In Oral evidence the Decision-Making Manager stated that she had considered a lesser sanction but was coloured in her thinking by the facts that a manager such as the Complainant, in a responsible position, would engage in what was in effect deception and would then not fully engage in the Disciplinary process. By opting out of the Process the Complainant had not given her rebuttal answers and accordingly left the Management with few options.

3:5:2         Adjudicator conclusion on Proportionality

In the Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J stated and is quoted above

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.

After consideration of all evidence and careful reflection, I had to come to the view that the E mail and Railway incidents were serious offences that were well proven. Natural justice was applied to a sufficient degree.

It is possible that they might have merited a lesser sanction, such as a Final Written Warning rather than a complete Dismissal from Employment. However, it is the prerogative of the Employer to decide the sanction once it is in the Band of Reasonableness.

The case of Allied Irish Banks plc v Purcell [2012] ELR 189 and the views of Justice Linnane, as quoted above, must be reflected upon.

The Dismissal was a tough decision for the Complainant but following a detailed investigation it was within the Band of Reasonableness for an employer.

3:6     Final Summary conclusions and Decision.

The final decision here was a balance between the Proportionality of the Dismissal decision, the effective abandonment of the Disciplinary /Appeal processes by the Employee and the context of a proven Breach of Trust.

My final Decision , from the evidence, is that the Dismissal was not Unfair on the grounds of Proportionality. The loss of Trust was proven. The Railway incident and the unusual documents demonstrated to the employer an employee who was prepared to attempt deception. The decision was within the Band of Reasonableness.

On a pure procedural ground, the non-participation in the final stages of the Disciplinary process and the Appeal option were also significant negative grounds for the Complaint.

Accordingly, the Dismissal is not Unfair, and I reject the Complaint.

Act

Complaint/Dispute Reference No.

Summary Decision/Please refer to Section Three above for Reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00023530-001

Dismissal was not Unfair.

Claim not Well Founded