Complainant

Respondent

Anonymised Parties

A Senior Men’s Clothing Salesman

A Clothes Retailer

Representatives

Byrne Wallace ByrneWallace

Deborah Delahunt Arthur Cox Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021156-001

15/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021156-002

15/08/2018

The Complainant commenced employment with the Respondent in October 2005. He was paid a gross monthly salary of €3,176.51. He was dismissed on 19th June 2018. A complaint was lodged with the Workplace Relations Commission on 15th August 2018.

The Respondent provided a comprehensive written submission.

The Respondent denies that the Complainant's dismissal was unfair and submits that he was dismissed fairly by reason of gross misconduct.

The Respondent is a menswear retailer, specialising in selling men’s fashion and business clothing. The Respondent operates twelve stores nationwide and employs approximately 130 employees.

The Complainant was employed by the Respondent from 18 October 2005 to 19 June 2018, as a senior salesperson on a full-time basis. The Complainant worked as a senior salesperson in a large shopping centre in south county Dublin from 2005 to early 2018 and he was highly regarded by the Respondent as a high performing suit salesman. The Complainant commuted from his home to the Respondent’s store for work. The Managing Director (MD) of the Respondent, believed he had a good relationship with the Complainant.

In and around January 2018, the Respondent opened a new flagship store in a city centre Shopping Centre. The Respondent had an internal opening for a suit specialist in that store and needed a high performing employee to take up this position. The MD was cognisant that the proposed move would reduce the Complainant’s commute time by almost half and could provide the Complainant with a better work/life balance. The Respondent would also benefit by having a high performing employee in its new flagship store.

The Respondent submits that in January 2018 that the MD had an amicable discussion with the Complainant in the Respondent's original workplace store about the proposed move. The only concern raised by the Complainant at that time was in relation to pay. The Complainant was concerned that he would not receive the same commission in the city centre store, given that footfall was not as high as where he was working at that time. The MD assured the Complainant that he would receive the same pay, notwithstanding that his hours could be shorter and that his sales figures might be less. At the Complainant's appeal hearing the Complainant acknowledged that he continued to receive the same pay while working in the new location. In February 2018 the Complainant moved to the Respondent’s store in the city centre.

The Respondent submits that on 11 April 2018, the Respondent received a formal complaint from Ms X, a colleague of the Complainant, which alleged that the Complainant engaged in inappropriate behaviour towards her. Ms Xmade several allegations against the Complainant including that he had touched the back of her neck on several occasions, touched her hips and sides twice, held her hand in the store, showed interest in her love life, invaded her personal space and played with the zip of her dress and attempted to unzip the dress.

The Respondent appointed the then Human Resources Manager and the Head of Retail to investigate the formal complaint made against the Complainant.

On 12 April 2018 the Investigators held a meeting with Ms X to discuss the formal complaint received.

The Investigators wrote to the Complainant on 17 April 2018 and invited him to attend an investigation meeting on 19 April 2018. The Investigators included a copy of the written complaint and copies of the Respondent’s grievance procedure, disciplinary procedure and bullying and harassment policy with the correspondence.

On 19 April 2018 the Investigators held a meeting with the Complainant at which the complaint was discussed. Minutes of this meeting were taken. These minutes were issued to the Complainant for his review and comment by email dated 23 April 2018 (. The minutes of this meeting were later agreed with and issued to the Complainant on 1 May 2018.

The Investigators identified two potential witnesses to the allegations made in the complaint. The Investigators held a meeting with both witnesses. However, it became apparent that one of the two witnesses had no knowledge of the alleged incidents.

The Investigators wrote to the Complainant by email dated 12 May 2018 inviting him to attend a meeting on 14 May 2018 to discuss the witness statement of the witness. A copy of the witness statement and meeting invite letter were attached.

Due to a technical issue in viewing the CCTV footage sent to the Complainant, the Complainant viewed the CCTV footage at the company Head Office on 16 May 2018, accompanied by his brother, acting as his representative.

On 21 May 2018 the Investigators held a meeting with the Complainant to discuss the content of the witness statement and the CCTV footage. The minutes were subsequently agreed, and final minutes of the meeting were sent to the Complainant by email dated 23 May 2018

By email dated 24 May 2018, the Investigators wrote to the Complainant attaching a copy of the investigation findings report. The report stated that the Complainant had 10 working days to review the report, along with all minutes and comments at his request, and to submit comments on the report formally in writing before a decision would be made as to what action should be taken.

The Complainant responded to the findings of the investigation on 5 June 2018, within the required 10-day period.

By letter dated 8 June 2018 the Investigators wrote to the Complainant confirming receipt of his comments on the investigation findings report and informing him that the investigation findings had been upheld.

By letter dated 11 June 2018the Human Resources Manager wrote to the Complainant and invited him to a disciplinary meeting on 14 June 2018. The Complainant was advised that the meeting may result in disciplinary action up to and including dismissal, and a copy of the Respondent’s Disciplinary Procedure was enclosed for reference.

On 14 June 2018 a disciplinary meeting was held with the Complainant. The HR Manager led the meeting as disciplinary decision-maker. Another employee attended the disciplinary meeting in her capacity as note-taker. The Complainant's brother attended as the Complainant’s representative.

By email dated 18 June 2018, the HR Manager wrote to the Complainant attaching draft minutes of the disciplinary meeting held on 14 June 2018 for his review. The HR Manager invited the Complainant to comment on the minutes from the disciplinary hearing and confirmed that the disciplinary outcome meeting was rescheduled to 19 June 2018.

The disciplinary outcome meeting was held on 19 June 2018. The Complainant was informed that he was being dismissed with effect from 19 June 2018 by reason of gross misconduct on the grounds of sexual harassment. The Complainant was provided with a copy of the written disciplinary decision at the meeting. The written disciplinary decision advised the Complainant that he was entitled to appeal the decision within 10 days in writing to the HR Manager. The Complainant was paid four weeks in lieu of notice.

By email dated 28 June 2018, the Complainant appealed the decision to dismiss.

The Respondent appointed an Independent HR Consultant to act as an external appeals adjudicator.

By letter dated 6 July 2018, Byrne Wallace, solicitors for the Complainant, set out a number of submissions in respect of the appeal.

The Respondent submits that the appeal hearing took place on 23 July 2018. The appeal hearing was attended by Independent HR Consultant as external appeal adjudicator, and the Finance Director, as note taker, the Complainant, a friend of the Complainant and the wife of the Complainant as representatives of the Complainant. At the appeal hearing the Complainant was given the opportunity to discuss the grounds of his appeal further.

The Independent HR Consultant issued the appeal decision letter to the Complainant by email on 1 August 2018. In reaching her decision, she addressed each of the Complainant’s grounds of appeal. The Independent HR Consultant upheld the findings of the disciplinary process and confirmed the Complainant's dismissal.

The Respondent submits that the decision to dismiss an employee is not something which the Respondent takes lightly or does frequently. In fact, the Respondent has rarely appeared before any employment fora to defend claims against it. Notwithstanding the foregoing, the Respondent has a common law and statutory duty of care to all its employees to provide a safe place of work. This includes a place of work free from harassment or sexual harassment. Sexual harassment cannot be excused.

As outlined in this submission, the Complainant's gross misconduct encompassed inappropriate and unwelcome behaviour of a sexual nature towards Ms X amounting to sexual harassment.

It is submitted that the Complainant's conduct clearly constituted harassment and sexual harassment.

It is submitted that the Respondent acted entirely reasonably and fairly in conducting the investigation and disciplinary process that it did. In this regard the Respondent:

(i) Carried out an investigation into the allegations;

(ii) Allowed the Complainant to review and comment on the investigation report;

(iii) Advised the Complainant in the disciplinary invite letter that dismissal could be a possible outcome disciplinary outcome in the disciplinary meeting;

(iv) Appointed an internal independent disciplinary decision maker to adjudicate on the allegations against the Claimant;

(v) Afforded the Complainant the right to bring a representative to the investigation meeting, disciplinary hearing and the appeal hearing;

(vi) Afforded the Complainant the right of appeal to an external independent appeal adjudicator; and

(vii) Issued a detailed and reasoned disciplinary decision and appeal decision.

In response to the Complainant's submission the Respondent denied that his dismissal was in any way predetermined; the reason for the dismissal was due to his inappropriate conduct. The Respondent also denied that although the minutes of the meeting between the investigators and Ms X on 12th May were not given to the Complainant this had no material impact as no new allegations were made at this meeting and the Complainant was already aware of the allegations. The Respondent submits that the opportunity afforded to the Complainant to submit comments on the investigation findings report in circumstances where he was also afforded a full disciplinary hearing and an appeal adequately provided fair procedures.

The Respondent submits that the Complainant was made aware of the substance of all evidence that ultimately resulted in his dismissal. The Complainant was afforded the right to representation and the opportunity to give a full response during the investigation, the disciplinary hearing and the appeal hearing.

The Respondent submits that it is entitled to take a very serious view of conduct amounting to sexual harassment. The Complainant’s conduct amounted to gross misconduct. The Complainant failed to put forward any mitigating circumstances in responding to the substantive allegations of sexual harassment against him during the Respondent’s disciplinary process, other than to contend that he was “tactile” by nature, that his actions did not amount to sexual harassment and that there has been an accepted culture amongst staff of physical contact. This demonstrates not only a fundamental misunderstanding by the employee of acceptable conduct and standards, but also a notable lack of remorse and offers the Respondent no comfort that the Complainant would not be “tactile” in the future.

In direct evidence the Respondent gave evidence in support of the above arguments. The Respondent denied that the Complainant was dismissed for any other reason than outlined above. The Complainant's behaviour was deemed sufficiently serious to warrant termination.   In taking the decision to dismiss the HR Manager considered the age differential between the Complainant and Ms X, the gap in their seniority and the fact that the Complainant had no insight into the seriousness of his conduct. The Respondent stated that the decision to dismiss was within the accepted range of reasonableness.

The Respondent also stated that the Complainant had been give due process, which was comprehensive and involved a number of different people to ensure fairness.

The Respondent also stated that sanctions other than dismissal were considered.

In conclusion, the Respondent submits that at all times fair procedures were applied to the investigation and the decision stages thereafter.

It was reasonable for the Respondent to dismiss the Complainant as a result of his gross misconduct. It is submitted that the Respondent's decision to dismiss was reasonable, proportionate and appropriate.

The Complainant provided a comprehensive written submission.

The Complainant submits that throughout his employment, he worked to a very high standard and was one of Respondent's top sales personnel. Prior to the initiation of the matters giving rise to his dismissal, the Complainant had a clean disciplinary record. At the date of the Complainant’s dismissal, he was the Respondent’s oldest employee working in any store in Ireland.

In the middle of February 2018, the Complainant was advised by the Managing Director of the Respondent, in a brief three-minute conversation on the shop floor that he was to be transferred to the Respondent’s newly established, and much quieter, City Centre store. The Complainant was advised that this move would take place "as soon as possible". This came as a shock to the Complainant as he was not consulted at any stage about the transfer.

On 11 April 2018, a matter of weeks after the Complainant commenced work at the City Centre store, another employee made a number of allegations against him.

The Complainant submits that the outcome of the investigation and disciplinary process that followed was predetermined as it was influenced by the Respondent's desire to replace the Complainant with a younger person on a lesser salary and commission structure.

The Complainant submits that the investigation and disciplinary process was the culmination of a desire on the part of the Company to phase the Complainant out of the business; evidenced by the following:

(i) The Complainant was excluded from a training programme that took place towards the end of 2017 and in early 2018. This programme involved an investment by the Respondent in certain employees by way of training to provide a new service not previously offered by the Respondent.

(ii) The Complainant was transferred to another store with little or no consultation.

(iii) The new targets set in the City Centre store were totally unachievable and unreasonably high given that it was a fledgling store. These targets would have significantly impacted on the Complainant’s remuneration over time had he not been dismissed. The HR Manager was one of decision makers in the investigation that led to the Complainant’s dismissal.

(iv) The Complainant was replaced in the South County Dublin store by a man in his twenties who commenced working in the store one week after the Complainant was advised he was being unilaterally moved to the City Centre store. Given, that the Complainant had been advised in the past that he was one of the Respondent's highest paid salesman, there is no doubt that this new starter commenced on lesser remuneration than him.

The Complainant does not deny that a complaint was made against him by another member of staff, however, it is the Complainant’s strong belief that the Respondent seized upon this complaint as an opportunity to rid itself of an older staff member who was operating on a wage structure that was costly for the Respondent as compared with that of more recently recruited staff and the Respondent's dealing with the complaint was at all times influenced by this.

The Complainant submits that the investigation conducted by the Respondent was not conducted from a neutral standpoint. The Respondent failed to conduct a fully probative investigation. Instead, the approach adopted by the investigators was to focus on any matters that supported the allegations in order to make a finding that the allegations were upheld.

The Complainant submits that this one-sided approach is evidenced by the following flaws and failings in the investigation. For ease of reading these points are summarised below:

(i) There is no indication that there was any detailed review of CCTV footage to ascertain whether there was any exculpatory evidence. The Investigation under the Respondent’s Bullying and Harassment policy focuses solely on one piece of CCTV footage. A more comprehensive review of the CCTV footage would have demonstrated clearly the true nature of the Complainant’s interactions with Ms X and further the nature of interactions between all staff in the city Centre store.

(ii) At the investigation meeting with the Complainant on 19 April 2018, the allegation was split into two parts, part one being “general incidents without dates attached". It was made clear that this covered allegations against the Complainant that he touched the back of Ms X's neck on numerous occasions, touched her hips and sides twice, held her hand on the shop floor, showed interest in Ms X's love life, invaded her personal space, came up behind her and whispered in her ear, played with her zip and started to pull it down and made comments about Ms X’s body and appearance. From the notes of the meeting with Ms X on 12 April 2018, a copy of which were only provided to the Complainant after he made a subject access request following his dismissal, it is clear that Ms X was not asked for specific details of these incidents.

(iii) There is no evidence to suggest that the investigators went back to Ms X following the interview with the witness on 1 May 2018 in order to seek clarification on some of the points raised by the witness. Specifically, Ms X was never questioned about the witness’s suggestion that the Complainant had referred to M X as a “prostitute” which did not form part of her allegations, was never mentioned by her in her investigation meeting but which clearly influenced the investigators in their findings. The witness is recorded in the notes of his investigation meeting as stating that Ms X would engage in "nervous laughter" in response to the Complainant’s alleged approaches. This is clearly a key point in terms of investigating whether the conduct in question was unwelcome- a crucial consideration in the context of the findings ultimately made against the Complainant. However, there is no further exploration of this either the witness or Ms X.

(iv) On 12 May the Respondent wrote to the Complainant enclosing minutes of the meeting with the witness. There is no mention of the minutes of the meeting with the other potential witness. The Complainant was not provided with a copy of the notes/minutes of the meeting with the other potential witness. The Complainant should have been provided with copies of all witness statements.

(v) In the section of the Internal Investigation Findings document dated 24 May 2018 (the “Investigation Report”) entitled “Referenced Documents” there is no reference to any statement from Ms X other than her original complaint nor is there any reference to any notes or minutes of meetings with Ms X. Despite this, under the heading “Allegation” the Investigation Report notes “Ms X states that she told [the Complainant] to stop and or go away on numerous occasions.” This is not included in Ms X’s original complaint; therefore, the Complainant did not have access to all of the information which formed the allegations against him and which was the basis of the findings against him.

(vi) In the section of the Investigation Report entitled “Conclusion” the allegations are simply repeated, and the positions of both parties presented. The document then goes on to confirm under the section “Overall Finding” that the investigator found "Ms X's allegations substantiated." There is nothing within the Investigation Report to demonstrate that any consideration of each individual allegation took place, or which identifies the basis for preferring the evidence of one party over another in respect of each individual allegation or which identifies which allegations were upheld.

(vii) The Investigation Report then goes on to state that the investigator agrees that “[the Complainant's] behaviour toward Ms X constituted Harassment.” It is clear that there was no analysis of the definition of harassment under the Respondent’s Bullying and Harassment Policy and that the investigator made a leap from a finding of unwelcome physical contact (which finding in itself was unsafe for the reasons specified above) to a finding of harassment. There is no evidence to show any consideration was given as to whether the alleged unwelcome behaviour had the purpose or effect of violating Ms X’s dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for her to work in.

(viii) The Respondent's Bullying and Harassment Policy provides that both parties will be given an opportunity to comment on the conclusions of the investigation team. The Policy then provides for an appeal of the findings within 10 days of receipt of the conclusions. Under the heading "Next Steps" in the Investigation Report, the Complainant was provided with 10 days to “review the findings of the report and to submit comments before a decision is made as to what action should be taken”. The Complainant was never advised of his right to appeal the findings of the Investigation Report. This is in blatant breach of the Respondent’s own procedures. This omission is acknowledged by the Respondent.

Regarding the Disciplinary hearing the Complainant submits that on 11 June 2018, the HR Manager wrote to the Complainant inviting him to attend a disciplinary hearing on Thursday 14 June 2018, however, the Complainant submits that no investigation took place under the Respondent's Disciplinary Procedure. This breach gave rise to a situation whereby a complaint of inappropriate behaviour leading to a finding of harassment under the Bullying and Harassment Policy turned into a finding of sexual harassment under the Disciplinary Procedure.

The Disciplinary Report makes a finding of unwelcome physical conduct (making no finding in respect of the other alleged verbal conduct) and states that this finding is evidenced by the witness statement from the witness, the Complainant’s own statements and the CCTV footage showing the Complainant placing his arm around Ms X. The Complainant never described any of his interactions with Ms X as unwelcome. There is no finding that the CCTV footage demonstrated that the contact in the footage was unwelcome. The witness did offer a view that there was contact that appeared to him to be was unwelcome but when describing this he referred to Ms X saying, "get off" and "nervous laughter" and this was never explored further with him.   The Complainant submits that there was no reasonable basis for a finding of unwelcome physical conduct.

The Complainant submits that the finding of unwelcome physical conduct now turns into a finding of sexual harassment. While unwelcome physical contact could constitute sexual harassment, it can only do so where the constituent elements of the definition are met.

The Complainant submits that there was no analysis or explanation as to the basis for a finding of sexual harassment. There is no detailed consideration of each of the constituent elements of the definition of sexual harassment.

The Complainant rejects in the strongest terms any suggestion that any of his interactions, physical or otherwise, with M X were sexually motivated or of a sexual nature. The Complainant interacted with all staff members, men and women, in the same manner. The Complainant often hugged his male colleagues in same why he hugged his female colleagues. The Complainant gave evidence that he is a tactile individual and this is not a characteristic that is sexual in nature.

The Complainant was very open and forthcoming about his engagement with Ms X. The Complainant gave evidence that none of his engagement was sexually motivated or was sexual in nature or was intended to violate Ms X’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for her to work in.

The Complainant submits that the Respondent made a grave error – conflating a finding of unwelcome physical conduct with a finding of sexual harassment.

On 28 June 2018, the Complainant emailed the HR Manager advising her of his decision to formally appeal the decision to dismiss him. On 6 July 2018, solicitors for the Complainant, wrote to the HR manager enclosing appeal submissions on behalf of the Complainant. The HR Manager replied to this letter advising that Ms. Y had been nominated to hear the internal appeal. The HR Manager further advised that the Complainant was “entitled to be represented at the appeal".

In the Respondent’s submission, Ms Y is described as an “external independent appeal adjudicator”. The Complainant submits that Ms Y was previously employed by the Respondent in a HR capacity.

On 16 July 2018, Ms Y wrote to the Complainant's solicitors inviting the Complainant to attend a hearing on 23 July 2018 to discuss the basis of his appeal. Ms Y wrote that the Complainant was entitled to “bring representation in the role of support person” to the appeal hearing. When the appeal hearing commenced on 23 July 2018, Ms Y reaffirmed this position by stating that the Complainant’s friend and wife were there to support the Complainant.

The Complainant submits that as with the investigation and disciplinary hearing before it, the correspondence with the Complainant, the notes of the appeal hearing, and the appeal outcome letter dated 1 August 2018 (the "Appeal Outcome") demonstrate substantial procedural flaws with the appeal process.

(i) The Complainant submits that the status of the appeal was not clear and such confusion is not indicative of the provision of fair procedures.

(ii) The Complainant also submits that the appeal was unfair as the Respondent failed to consider each specific allegation and failed to consider the definition of harassment or sexual harassment and each component part by reference to the evidence or findings.

(iii) There is no evidence that any consideration of a sanction other than dismissal took place or why it would not have been appropriate.

At the hearing the Complainant gave evidence to support the arguments outlined above.

In direct evidence at the hearing the Complainant also vigorously denied the allegations made against him. The stated that there was a "tactile happy environment" in both stores.

The Complainant stated that he only worked with Ms X for three weeks and they were not always on the same shift. Although he might have given her a polite hug he did not use any inappropriate terms when referring to her; he had the height of respect for her. He never played with her zip. He may have used terms of endearment like pet. She never told him to stop.

In cross examination the Complainant stated that he never felt he had done anything wrong and that if his behaviour was so bad he should have been suspended until he was dismissed.

Regarding the disciplinary process the Complainant stated that he was not aware he could bring a solicitor or cross examine the witnesses.

When it was put to the Complainant in cross examination that his intentions were not important but what was important was Ms X's perceptions of his actions the Complainant state that he had no intention of making Ms X uncomfortable.

He was adamant that his actions were not sexual harassment, harassment or inappropriate. He is of the view that when the complaint came in it was seized upon by the company as a way to exit him from the business.

In concluding, the Complainant categorically denies that he is guilty of any harassment, sexual harassment or inappropriate behaviour. The Complainant was very open and forthcoming about his engagement with Ms X throughout the investigation and disciplinary process. The Complainant gave evidence that none of his engagement was sexually motivated or was sexual in nature or was intended to violate Ms X’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for her to work in.

Without prejudice to the above, the Complainant submits that the Respondent, in acting with flagrant disregard for his entitlement to fair procedures, did not behave reasonably in relation to his dismissal. As set out in detail above, fair procedures were disregarded at every stage of the investigation, disciplinary and appeal processes. Each of the allegations made against the Complainant were not properly investigated, he was not permitted an appeal under the Respondent's Bullying and Harassment policy and no investigation took place under the Respondent's Disciplinary Procedure. The Complainant was subjected to arbitrary findings which were not based on any proper analysis of the definitions of harassment or sexual harassment under the Respondent’s own policies.

In addition to the above breaches of fair procedures, the Respondent failed to permit the Complainant to be appropriately represented at the disciplinary hearing. The Respondent’s Disciplinary Procedure provides for representation by a work colleague. In circumstances where it was clearly not appropriate for the Complainant to bring a work colleague and where no other form of representation was permitted in accordance with the Respondent’s procedure the Complainant brought his brother to the disciplinary hearing.

The Complainant submits that he was, thereby denied any representation. Given the fact that the Complainant was facing dismissal; substantial reputational damage and at his age realistically loss of his livelihood, due process required adequate representation at this hearing. This was denied.

In addition, the Respondent failed to permit the Complainant the opportunity to confront his accusers.

The Complainant was not given every opportunity to rebut the allegations made against him. He was not even provided with a copy of the notes of his accuser. He was not given any means, by which to challenge or test evidence given by his accusers. This is another fundamental breach of due process.

Without prejudice to the fact that the Complainant denies that he is guilty of any harassment, sexual harassment or inappropriate behaviour, it is submitted that the sanction of dismissal was too severe in all of the circumstances. Any sanction imposed on an employee must be proportionate to the conduct at issue and must be reasonable in all the circumstances.

In this case, the sanction of dismissal was unreasonable and disproportionate. Without prejudice to the fact that the Complainant denies that he is guilty of any harassment, sexual harassment or inappropriate behaviour, the Respondent appears to have adopted a zero-tolerance approach with the Complainant to breaches of its policies. This is unlawful and particularly so given that the Complainant, was provided with training on the Respondent's Bullying & Harassment Policy or Dignity at Work Policy. The Respondent's Bullying & Harassment Policy or Dignity at Work Policy was communicated to the Complainant in the following manner: approximately four to five years ago while working in the South County Dublin store the Complainant was advised while on the floor that there was a copy of the Respondent’s policies out the back of the store for him to sign. No further explanation was offered. The Complainant simply signed the copy of the booklet as instructed and returned it to the store manager.

In his experience over 13 years, there has been an accepted culture amongst staff and management of the Respondent of physical contact: hugging; kissing goodbye or hello; jostling; back slapping or patting and verbal compliments on appearance or attire. Throughout the Complainant’s 13 years of employment with the Respondent this behaviour has been witnessed and engaged in by the Respondent’s management.

For all the reasons set out above, it is submitted that the decision to dismiss the Complainant was not within the range of reasonable responses of a reasonable employer.

I have considered this matter carefully.

The Respondent has put forward that the decision to dismiss was only taken after the completion of a thorough investigation, followed by a fair disciplinary process. The significance of the actions of which the Complainant was found guilty warranting the ultimate sanction of dismissal. The Respondent submits that the decision sits within the range of reasonableness.

The Complainant argues that the investigation was flawed, the Complainant was not the subject of fair disciplinary procedures and that the decision to dismiss was disproportionate in the circumstances.

S6(4)(a) of the Act states 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 the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (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 which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

Applying the aforesaid legal principles and statutory provisions to the facts adduced, I find as follows:

The Complainant accepts that he carried out several of the actions of which Ms X had complained. It was his view that these actions were not sexual in nature and that it was never his intention to upset Ms X. However, the intentions of the perpetrator are not what counts in such circumstances, rather it is the perception of the recipient that is important. In this instance Ms X was upset by the Complainant's interactions with her.   In view of the HR Manager who took the decision to dismiss the Complainant, he did not fully grasp the significance of his actions, their impact on Ms X nor did he show real remorse for the upset he had caused.

The Complainant has submitted that the decision to dismiss him was preordained and that the Respondent jumped on the complaint made by Ms X to get rid of a costly employee. I do not accept this theory. I can see no reason why an employer would get rid of an experienced, performing employee for the sake of a relatively small amount of money.

The Complainant submits that the sanction of dismissal was unfair and disproportionate. In light of the seriousness of the allegations made and upheld, allied to the lack of empathy displayed by the Complainant I find that there were substantial reasons to justify the dismissal.

Regarding the procedural aspects of the case I agree with the Complainant that not everything was perfect; however, I do not agree that there were as many faults in the process as the Complainant submits. The question to be answered is whether the faults in the process were substantial enough to render the process unfair.

Looking at the investigation process I agree that the Complainant should have been issued with the notes of Ms X's interview. However, he was issued with a copy of her complaint which covered the complaints that were pursued. I do not agree that the review of the CCTV was not comprehensive enough; I believe it was reviewed enough to draw a conclusion regarding the Complainant's actions.

The Complainant argues that the Respondent failed to consider, analyse and make findings in respect of each of the allegations. Whereas this may be correct in absolute terms I am satisfied that there was an analysis of the allegations sufficient to base a decision.

The complainant was granted an appeal. The Complainant makes play on the fact that the Appeal Hearing was heard by a former employee of the Respondent as this of itself rendered the Appeal decision unfair. I do not think it does. I accept the bona fides of the Hr Consultant. It should be noted that in the normal course of events an Appeal Hearing is heard by an individual still in employment or strongly linked to the employer.

The Complainant was made aware of his right to representation during the process and he did invoke that right. Although he did not have legal representation at the Disciplinary Hearing he had sought legal advice by the time of the Appeal Hearing yet he did not have legal representation at that Hearing either. The Respondent refers to those who accompanied the Complainant to both the Disciplinary Hearing and the Appeal Hearing as "Support", in reviewing the documentation it was seem that a supporter is in essence a representative.   In both instances the Complainant's brother was the "support". The Complainant was entitled to bring a support or representative with him, it was the Complainant who chose his representative, the Respondent did not prevent the Complainant from bringing a legal representative as no request for such representation was made.

The Complainant submits that he was not allowed confront his accuser.   This is correct and he should have been allowed question Ms X if he wished to do so.

So, were the procedures used in the disciplinary process fair? There were some failings in the procedures however do those failings push the process into the category of being unfair? To answer that question, one must review the procedures and decide if they live up to the principles of natural justice.

S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) outlines the general principles of natural justice and fair procedures required in the workplace arena.   These principles include:

The details of any allegations or complaints are put to the employee concerned;

That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

The employee concerned should also be made aware of the appeals process.

The principles of natural justice must be applied by the respondent in the policies and procedures it applies to the complainant's employment and dismissal. This requires that fair procedures are applied, not perfect procedures. As stated in Barrett J. in Boyle –v- An Post [2015] IEHC 589 "fairness is ever required, perfection is unattainable".

In this case it seems to me that although the procedures used were not perfect, they did adhere to the principles of natural justice as outlined above and thus were fair.

In summary I find that there were substantial grounds to justify the dismissal, the sanction of dismissal was proportionate, and the procedures used in the disciplinary process were fair.