Complainant

Respondent

Anonymised Parties

A Complainant

An Employer

Representatives

Represented by Tom Murphy, BL, instructed by Mangan O’Beirne Solicitors

Represented by Ray Ryan BL, instructed by Eversheds Sutherland Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00027280-001

26/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00027282-001

26/03/2019

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

CA-00027294-001

26/03/2019

The complainant lodged complaints under the Unfair Dismissals Act and the Employment Equality Acts. The complainant withdrew his complaint (CA-00027282-001) under the Employments Equality Acts at the commencement of the hearing. The complainant is alleging that he was unfairly dismissed by the respondent company. While there were two complaints lodged i.e. CA-00027280-001 and CA-00027294-001 in relation to the unfair dismissal, CA-00027280-001 is a duplicate complaint of CA-00027294-001.  

The complainant states that he was Head of Operations in the respondent company from July 2017 until his dismissal on 27 September 2018. The complainant submits that he had risen through the ranks of employment since his commencement with the company in 2009. The complainant asserts that until his dismissal, he was a valued member of staff with significant responsibility within the company with a proven track record of achievement in the organisation. The complainant states that he was dismissed by way of a phone call on 27 September 2018 with a follow up e-mail the next day on 28 September. The complainant argues that the decision to terminate his employment was unfair, was not reasonable and was a decision that was reached without proper consideration, without proper procedures being followed and arrived at in the absence of reasonable justice being afforded to him. The complainant submits that the procedures adopted by the respondent company were flawed and improper. The complainant states that the company was alerted to the activity of a certain number of staff members who were exchanging messages on the What’s App messaging service. The complainant submits that he did not arrange or form the group, rather he was added to the group by another member without his consent. The complainant states that he is aware that certain content of the group was inappropriate, however he does not accept that he was a major contributor to the group or that he was encouraging of the posting of inappropriate material. The complainant contends that he actively sought to change the focus of the group from such material and that he did so in circumstances where he felt peer pressure to be involved in the group and not to leave it. The pressure in this regard felt by the complainant was the subject of conversations with the complainant’s colleague Mr. A which the complainant asserts took place on more than one occasion.

The complainant submits that there were many times when he was the subject of racial abuse and slurs on the whats app group from UK based colleagues. The complainant states that such content was illustrative of a general culture within the corporate group and about which he had made complaints during the investigation and disciplinary process. The complainant submits that his protected disclosures concerning the anti-Irish content of the group were ignored and brushed aside. The complainant asserts that this is particularly distressing in circumstances where the investigation conducted by the respondent into the Whats App activity was based on a protected disclosure (anonymously) made by another member of the Whats App group and whose identity the respondent refuses to confirm.

The complainant submits that the investigation and disciplinary processes were deeply flawed. He states that the matter was investigated by members of staff who were inappropriate for the task. Both Mr. B and Ms. C were mentioned in the Whats App messages and it was deeply inappropriate for them to have any involvement with the investigation process. The complainant asserts that the report of the investigation that followed was replete with value judgements and the baseless accusation of colluding to undermine the investigative process. The complainant argues that the reference in the investigation report is dismissive of his allegations of harassment and bullying from the within group. The complainant contends that at no point during the course of the investigation and disciplinary process was the content of the messages put to him in any meaningful way nor was it indicated to him how the messages (either individually or collectively) were in breach of the company’s code of conduct nor how they could have amounted to gross misconduct. The complainant states that it was not outlined to him as to how his behaviour was inappropriate. He states that no specific, individual allegation was put to the complainant referencing the company’s policies and giving him an opportunity to defend himself.

The complainant asserts that the allegations of acts of misconduct were general and non-specific. He states that there is no reference in the investigation meeting nor in the disciplinary hearing or appeal to the specific aspects of the codes of conduct being relied upon, the aspects of Irish employment legislation being relied upon by the respondent or which may be germane to the complaints of the respondent. The complainant further states that there is no reference to the relevant Irish whistle blower legislation which is being relied upon. The complainant submits that he was denied any legal representation despite repeated requests for same and was denied any sense of his entitlements under the law in order to defend the claims of his employer. The complainant asserts that the offer of the respondent to facilitate the presence of a colleague or trade union representative was unrealistic and the respondent was aware of this.

The complainant contends that there was a distinct lack of fairness and equality of arms throughout the process as to render it meaningless and perverse. The complainant states that the approach taken by the respondent has all the hallmarks of a decision having been made in advance of the process and the process being invoked to ensure that the decision previously made is implemented. The complainant maintains that no reasonable objective assessment of the process undertaken could find that he was fairly treated. The complainant submits that no reasonable employer when faced with the circumstances would have dismissed him and cites the caselaw in Bank of Ireland v Reilly [2015] ELR 229 and AIB v Purcell [2012] 23 ELR 189.

The complainant asserts that the response of the respondent was unreasonable when all the circumstances are weighed appropriately. The complainant submits that he was a trusted employee with a clean employment record and with a background of achievement within the roles he performed in the company. He states that he had achieved recognised success in the company and had won awards for his efforts on its behalf. The complainant states that due credit for his previous untainted record and his high achievement rate was not afforded to him. He further states that no weight was given to the distressful situation that he found himself in while a part of the Whats App group and during the tainted processes of investigation and discipline. The complainant asserts that he had complained of the racially motivated slurs to which he had been subjected by other managers with the respondent corporate group. The complainant maintains that a proper formal complaint was made by him regarding such abuse and the respondent chose to ignore same and not pursue it. The complainant submits that there is no evidence despite the call for same to produce information regarding the investigation by the respondent of the abuse suffered by the complainant. The complainant states that it is clear that the respondent dismissed the concerns of the complainant regarding the racial slurs which are evident and gave no weight to same when determining that his employment was to be terminated. Similarly, the complainant states that the respondent gave no weight to the fact that he had complained of a culture of abuse within the respondent company and beyond. The complainant argues that all and any credits built up by him throughout his employment were set at naught. The complainant argues that it was open to the respondent to impose a lesser sanction but that they chose not to implement one is disproportionate in the circumstances and unjustifiable. The complainant submits that rather than being a last resort for the respondent, the ultimate sanction was given to him in the absence of proper processes and reasoning and cannot be justified.

The complainant states therefore that the respondent has failed the “band of reasonable responses” test as articulated by Lord Denning in British Leyland and approved of in the case mentioned above relating to AIB v Purcell. The complainant argues that it was open to the respondent to respond differently and their chosen actions were not within the band of reasonableness. The complainant asserts that the manner of his dismissal was deeply unfair. The complainant states that he was told by way of a phone call that he was being dismissed and that an e-mail to that effect would be sent to him the following day. However, he states that before the confirmatory e-mail was received and before an opportunity to appeal that decision to dismiss him was availed of, a circular was sent to all remaining employees within the company telling them of the dismissal. In addition, the complainant states that prior to the exhaustion of the appeals process available to the complainant, the respondent wrote to clients of his indicating that he no longer worked for the company. The complainant states that a gratuitous and defamatory paragraph within that same letter written by Mr. B, to clients of the complainant said that the complainant was no longer with the company on account of his “personal behaviour that is inconsistent with our values and has no place in our organisation”. The complainant states that the fact this letter was sent at all was distressing enough for him. He states that it was sent before the appeal of his dismissal was commenced or exhausted is evidence of the deep mindset within the respondent company to dismiss the complainant and to do so without the benefit of fairness in their procedures and reasonableness in their approach to his rights and entitlements.

The complainant contends that the respondent displayed no notion of concern for his reputation and no respect for his privacy. He states that upon being asked to surrender his mobile phone, he asked to be afforded an opportunity to retrieve personal data from his phone including photographs of his family but this was not afforded to him. The complainant states that he was treated in a high handed and shabby fashion and little regard was paid to his rights to fair procedures. The complainant submits that the treatment of his protected disclosure was contemptible and lends itself to the conclusion that he was only ever going to be dismissed from his employment by the respondent in what must be seen as a predetermined plan to clear house of all members of the Whats App group, irrespective of context or circumstance. The complainant reiterates that the manner in which he was treated after the decision to terminate his employment only confirms same.

In summary, the complainant states that fair procedures were not observed in the within complaint. The complainant states that he had been a valued member of the company and the company escalated this matter on the basis of an anonymous disclosure. The complainant asserts that there is no evidence that any individual suffered as a result of the Whats app group. The complainant highlights the fact that in examining the reports of the various disciplinary investigatory meetings, there was no scrutiny of the applicable Irish employment law.             

The respondent submits that the complainant was an employee of the company with continuous service since 30 November 2009.It states that as at the date of his dismissal, the position held by the complainant was Head of Sales Operations, Ireland. The respondent asserts that this was a very senior position with leadership responsibilities within the respondent company and involved the complainant managing approximately 40 employees and an annual turnover of approximately €13 million in relation to the Irish business. The respondent contends that the complainant’s employment was terminated on 28 September 2018 for gross misconduct. The respondent submits that the dismissal was due to extremely serious breaches by the complainant of the respondent’s Social Media Policy and Code of Conduct arising from his participation in a Whats App Group with other senior Commercial Team Managers. All the employees participating in the Whats App Group used company mobile devices.

The respondent states that the content of the messages and exchanges in the Whats App Group only has to be briefly considered, for it to be seen that it includes a large number of communications (including by the complainant himself) which are just entirely unacceptable and improper, antithetical to the respondent’s values and entirely at variance with the standards expected of employees. The respondent submits that the complainant engaged in conduct which, having investigated the matter, could not have reasonably been expected to tolerate for a moment longer within the meaning of the caselaw. It is submitted that the dismissal is not unfair having regard to section 6(1) and section 6(4)(b) of the Unfair Dismissal’s Act.

The respondent maintains that the letter of dismissal dated 28 September 2018 clearly set forth the basis upon which the complainant was being dismissed, which was for gross misconduct. The said letter made it clear that this was because of his participation in the Whats App group, in that, the complainant had breached the respondent’s Social Media Policy and Code of Conduct. The respondent submits that the actions of the complainant caused the trust and confidence that must exist in an employment relationship to be irretrievably broken. The respondent submits that the question to be answered is whether the respondent has demonstrated that there were substantial grounds justifying the dismissal. In this regard the respondent cites the following caselaw; Bunyan V United Dominions Trust (Ireland) Ltd. UD 66/1980, Bank of Ireland v Reilly [2015] E.L.R. 229, AIB v Purcell [2012] E.L.R. 189 and McGee v Beaumont Hospital UD 136/1984.

The respondent submits that there were substantial grounds to justify the termination of employment of the complainant as constituting gross misconduct. The respondent states that it conducted a thorough investigation, a disciplinary hearing and offered and conducted an appeal in conformity with its disciplinary procedure and this overall process afforded the complainant fair procedures and natural justice. The respondent asserts that it was entitled to form the view that based on the evidence, the complainant was guilty of gross misconduct and that dismissal was the appropriate sanction. The respondent submits that the actions of the complainant are the type of behaviours which the respondent cannot tolerate and cannot reasonably be expected to tolerate.

The respondent states that the complainant was afforded every opportunity to address the allegations against him. It states that the requirements of natural justice were met in the above referenced processes. The respondent submits that strictly without prejudice to any other submission herein, in the event that it is deemed that there has been any procedural unfairness (which the respondent wholly denies), this would not necessarily render the dismissal unfair. In that respect, the words “…have regard to all the circumstances” in section 6(1) of the Unfair Dismissal’s Act are of major importance.

In summary, the respondent submits that the dismissal of the complainant was not unfair and the reason for his dismissal was due to gross misconduct. The respondent submits that the messages he posted on the Whats App group were very offensive including posting derogatory comments about employees of the respondent company. The respondent asserts that the complainant’s actions were completely at odds with the company’s value systems. The respondent states that trust and confidence in the complainant was broken due to his actions. The respondent states that the complainant got a fair hearing both at the initial stage and at the appeal stage. He was afforded the opportunity to bring a colleague or a trade union representative but chose not to do so. While the complainant argued that he was not allowed bring a solicitor to the investigation meetings, the respondent states that generally under Irish Law employees going through the disciplinary processes are not entitled to legal representation and the High Court case in McKelvey v Irish Rail was cited in this regard. The respondent states that the complainant knew what the issues were and got fair hearings. It further stated that with regard to legal representation at disciplinary hearings, the complainant’s case does not come within the “exceptional” category as outline at paragraph 58 of the above judgment. The respondent states that strictly without prejudice to its full defence of this claim and its denial that the dismissal was unfair, if the within dismissal is found to be unfair which is utterly refuted by the respondent, this is a case in which the complainant contributed to his dismissal to such an enormous extent that no compensation award ought to be made.  

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

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

In JVC Europe Ltd. -v- Panisi [2011] IEHC279, the High Court 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 in the context of Section 6 of the Unfair Dismissal’s Act 1977 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.”

An employee also has an implied contractual and constitutional right to fair procedures as grounded in common-law, Irish caselaw e.g. Re: Haughey (1971) IR217 and statue i.e. S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures).

Where a question of unfair dismissal 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 for misconduct, 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.”

Having adduced the totality of the evidence in the instant case, I find that there are procedural defects in the manner in which the complainant’s employment was terminated.

I note that the Whats App group which was in existence over an eight month period came to light following a protected disclosure from an employee. I note that the complainant was added to the group by another member of the group Mr. S who was an administrator of the Whats App group. I note that all seven employees who were in the group were dismissed from the company. The 7 employees comprised the complainant, 4 of his peers based in the UK, their manager Mr. D and also a more senior manager Mr. G also based in the UK. I note that the complainant’s activity on the Whats App group was roughly 15 % when compared to other members of the group.

The company stated at hearing that it was of paramount importance to it to protect the image of the company and for those reasons, it dealt with the disciplinary and appeal processes within the business and did not seek independent outside assistance for that reason. I note the two members of staff who undertook to oversee the investigation of the allegations were referred to in the Whats App group in derogatory terms and it may not have been best practice or prudent for the company to have said employees undertake such tasks given the conflict and the perception that the process may be tainted as a result.

I am cognisant of the testimony of the complainant in that he stated that he felt isolated within the company in terms of being the only member of the group based in Ireland. Based on the evidence given by the complainant, the complainant was trying to fit into the group and he stated that there was pressure put on him to contribute to the group otherwise he would be viewed as not being trustworthy. He stated that he did confide in a colleague Mr. A, based in the UK who was junior to him about wanting to leave the group. Mr. A in his testimony stated that the complainant confided in him and said to him that he was very uncomfortable with the types of posts being put up on the group. Mr. A also stated that he advised the complainant to remove himself from the group. However, the complainant submits that the overriding factor for him was that he felt if he left the group, he would be out of the loop and it would be detrimental to his career. The complainant contended that the Whats App group provided a good platform for the managers to network, share ideas and indeed to vent issues as necessary and if he exited the group, he would be cut off from the other managers.

I find that it was unreasonable for the company to send a letter to the complainant’s co-workers prior to the appeal process being heard informing them of his dismissal. In addition, I find that the letter sent by the company (dated 3 October regarding the termination of the complainant’s employment) to all of his clients objectionable. In the letter the company states; “complainant {my emphasis} is no longer an employee of company {my emphasis}, effective immediately. This action relates to personal behaviour that is inconsistent with our values and has no place in our organisation. To be clear, the behaviour is not related to any financial dealings or to the company business.”   This letter issued prior to the consideration of the complainant’s appeal as he was entitled to bring which would include a request to take into account mitigating factors which could have resulted in a lesser sanction than dismissal. In my view, the behaviour of the respondent company was not what one would expect from a reasonable employer. I consider the inclusion of the above paragraph in the letter to the complainant’s clients gratuitous and it had the potential to result in serious reputational damage to the complainant. I am also satisfied that the timing of the communication sent to the complainant’s co-workers and the letter sent to the complainant’s clients informing them of his dismissal was unfair and unreasonable and had the hallmarks of a pre-ordained outcome in circumstances where the appeal mechanisms had not been exhausted.

I am also mindful that the company did not give sufficient weight to any mitigating circumstances relating to the complainant. He had a clean disciplinary record, he had undertaken 60-hour weeks on many occasions. I note that the complainant was an integral member of the team and a valuable employee as stated by the company representatives, he grew the business turnover in Ireland by 47% since taking on the role of sales manager in 2014, he had 9 years unblemished service with the company, he won awards on behalf of the company including being a recipient of the European Best Performance Award 2016.

I am further satisfied that the respondent failed to act reasonably by omitting to consider whether dismissal was a decision proportionate to the gravity of the complaint and of the gravity and effect of dismissal on the employee as required in Frizelle v New Ross Credit Union Ltd. (1997) IEHC 137. Although the complainant accepted that his conduct was ill-judged and inappropriate, there was no consideration of the mitigating factors proffered and in particular his prior good record and his significant contribution to the growth of the business in Ireland either at the disciplinary stage or appeal stage and whether a lesser sanction such as a final written warning could have been considered.

While the complainant strongly requested to be allowed bring legal representation to the disciplinary and appeal meetings, he was informed by the respondent that he could only bring a trade union representative or a colleague. The company was not unionised and given the sensitive nature of the issues involved, the complainant stated he was not in a position to bring a colleague to the meetings.

Exceptional circumstances are set out in Burns v Governor of Castlerea [2009] IESC 33, a case of the Supreme Court where Justice Geoghegan approved a series of factors which should serve as “starting off points” from which to approach such a request as to whether legal representation should be permitted.

1.       Seriousness of the charge and of the potential penalty

2.       Whether any points of law are likely to arise

3.       The capacity of the person to present his own case

4.       Procedural difficulties

5.       The need for reasonable speed in making the adjudication, that being an important consideration

6.       The need for fairness as between the parties

I find that given the allegations against the complainant were very serious and that both the potential penalty of dismissal and the potential for reputational damage which the charge carried were significant together with the fact that the company was operating under UK employment law and dealing with a number of protected disclosures under the UK whistle-blower legislation including a complaint by the complainant about harassment and concerns about a wider problem with regard to the culture within the respondent organisation; the cumulative effect of the complexity of these matters, in my view brings this claim within the “exceptional category” where legal representation was required.

Having carefully considered the totality of the evidence adduced in the instant case, I find that there were a number of procedural defects as outlined above which renders this dismissal unfair. However, I am satisfied that the complainant has contributed to his dismissal by his participation in the Whats App group, accordingly, the quantum of award has been reduced on that basis.

I find, in the within claim, that there were a number of procedural flaws in the process which renders the dismissal unfair. Based on the evidence, I am satisfied that the complainant contributed to his dismissal by his actions which he accepted were ill-judged and inappropriate. I note the complainant’s diligence in sourcing alternative employment 6 weeks following his dismissal. I note that the complainant stated that he had losses of 1.5 month’s salary and also losses in respect of entitlement to company shares and a contractual bonus scheme. Given that I find that the complainant contributed to his dismissal considering all the evidence heard, I consider it just and equitable in all the circumstances to award the complainant a sum of compensation equivalent to 1 month’s remuneration, being €7000. The respondent is therefore ordered to pay the complainant €7,000 in compensation (subject to any lawful deductions).

Unfair dismissal, gross misconduct