Complainant

Respondent

Anonymised Parties

A Worker

Manufacturing Plant

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-00019959-001

22/06/2018

The dismissal was not in dispute.It was submitted that the claimant was dismissed for gross misconduct arising from comments he made at a Town Hall meeting on the 4th.May 2018.It was denied that the dismissal was unfair.The respondent’s representative set out a time line of the key events leading up to the dismissal from the original Town Hall meeting on the 18th.April 2018 to the outcome of an unsuccessful appeal on the 4th.May 2018.

It was explained that the claimant had made a complaint of discriminatory treatment to the Equality Tribunal in 2012 and the complaint was not upheld.The complaint was currently the subject of appeal before the Labour Court.

It was submitted that on foot of complaints received from members of staff regarding comments made by the claimant at the Town Hall meeting , on the 18.04.18 , the respondent commenced a workplace investigation.Towards   the end of the meeting following presentations from members of management , the claimant raised a question about GDPR followed by a question to the HR Manager “ the general thrust of which was” Why did you lie to the Equality Tribunal”.The claimant was interviewed by 2 Investigators .It was advanced that according to his own signed statement the claimant ‘s words were “I have asked this question several times before but never received an answer , why did you lie at the Tribunal hearing”.The reference was to an earlier complaint made by the claimant to the Equality Tribunal.The interview took place on the 25th.April 2018 and was followed by a further meeting on the 27th.April 2018 – it was submitted that the claimant was given a further opportunity to make a submission at this hearing but he declined. He was dismissed , an appeal ensued and the appeal was rejected .It was submitted that the claimant uttered the words complained of , that in their ordinary meaning they conveyed that the HR manager was a liar , was untrustworthy and that she lied under oath at a statutory tribunal. It was contended that the words were grossly defamatory , and were published by the claimant at an open work meeting in front of other employees. It was submitted that the words were of sufficient gravity as to amount to a repudiation of the claimant’s contract of employment.It was submitted that in such circumstances it was reasonable to dismiss the employee and that he had been afforded due process and fair procedures at all times.The claimant had been suspended with pay and the process was prompt, fair and impartial. The claimant was offered representation and all of his rights under natural justice were observed. It was submitted that the sanction of dismissal was proportionate and that the actions of the claimant destroyed the trust and confidence that lay at the heart of the employment contract. .

In summing up the respondent’s representative contended that the claimant had proffered no evidence to support what he stated – this was a most serious allegation and it was submitted that the threshold had to be extremely high in terms of proof to back up his assertion about the HR manager.It was submitted that it was dangerous to allow uncorroborated allegations to be made. On his own evidence the claimant had said he did not think what he said was that big a deal – the employer however had taken it as a very serious matter. The claimant was made aware of the investigation , all relevant documents ere furnished , the claimant was afforded the right to representation at the meetings and was afforded an opportunity to respond to the allegations. The appeals officer had no internal involvement. The test was – was it fair and reasonable to dismiss in all of the circumstances .Ultimately nothing changed in relation to the allegations- the claimant stated that a service manager had lied with no evidence to back it up. It was submitted that this was an uncorroborated allegation and there was no evidence to underpin the allegation. It was submitted that what was alleged to have been said was not said .It was advanced that the employer had acted fair and reasonably .It was submitted that there was no practise of external appeals in the company.

The HR manager gave evidence on behalf of the respondent – she set out her account of the background and exchanges that took place at the Townhall meeting on the 18th.April 2018.She stated that she was appalled and shocked at being called a liar- that her good name could be just dismissed.She left when the meeting ended , discussed what the claimant had said with her husband and stated that she was reserving her position with respect to legal proceedings.

She confirmed that she did not pursue a grievance and it was put to her under cross examination that she was happy to stand back and let others pursue the complaint.The HR manager gave an overview of events in 2012 when employee Ms. TM was found to be upset arising from comments made by the claimant. When he was approached about the complaint from Ms. TM , the claimant made a complaint about comments made to him by MsTM. The HR manage Ms.O’B said that the claimant made a complaint that he had been called an “Orange B” on 2 occasions once during morning coffee and on another occasion in front of a new employee. The HR manager said that Ms.TM said she had made the comments in jest.It was put to Ms.X that no investigation took place and the sanction against Ms.TM was not disclosed to the claimant .It was put to Ms.X that the claimant’s rights were not protected and she replied that we had a grievance procedure and the claimant did not appeal. The HR manager stated the claimant received a letter to say the claimant got a written warning for his comments to Ms.TM .Ms. O’B said we were developing our procedures and “ I did not lie to the Tribunal”.

It was put to Ms.O’B that she knew well there were more than 2 incidences of the claimant being called an “Orange B” and that when she confronted Ms.TM she admitted she used the term .The claimant’s counsel asserted that it suited the HR manager to close the book on the subject.The Hr manager responded “she (Ms.TM ) was sanctioned”. The HR manager said Ms.TM was apologetic and accordingly there was no need to speak to other witnesses – if Ms.TM had denied the allegation she would have gone to other witnesses. Ms. O’B was asked how could the claimant appeal what happened to MsT.M when you can only appeal on your own behalf.

A letter from the claimant to company CEO Dr.JS – 15.08.15 was read into the record .In the document the claimant refers to health & Safety issues on the site and sets out his allegations of racial and sectarian abuse over several years.It was put to the HR manager that she should have done a thorough investigation into the claimant’s complaints .It was suggested to her that she could not comment on the veracity of statements from Ms.EO who gave evidence of the claimant being called an “Orange B.” more than twice. Ms. O’B accepted that she could not.It was submitted that this was not a fair or thorough investigation. It was put to the HR manager that she could not have been surprised at what the claimant said at the Townhall meeting as she was aware that the comments were around for years .In answer to a query about the claimant getting a written warning while Ms.TM received a verbal warning the HR manager replied that the claimant already had a disciplinary warning on his file. It was submitted that said warning was inappropriate as it related to health and safety matters raised by the claimant .Mr.JE spoke with Ms.TM and the HR manager stated that she did not need to speak with her as she had admitted to using the Orange B term.The HR manager said that both she and Mr.JE spoke with the claimant and he referred to the Orange B comments being made on 2 occasions.

Mr.JE gave evidence on behalf of the respondent and described Ms.TM’s distress when she approached him about the claimant’s derogatory   comments in 2012 -Ms.TM alleged that the claimant called her a “c**t” .Mr.JE stated that when he approached the claimant about this the claimant did not recall and proceeded to make a complaint about Ms.TM calling him an “Orange B” when he was introduced to a new employee and at a coffee morning.Mr.J.E said Ms.TM immediately confirmed it had happened .She got a warning for what she did – was upset but did not appeal it.A full investigation took place and the outcome was that the claimant got a warning as well.Mr.J. E said both parties had been good friends so he initially gave them a weekend to consider an informal resolution.

Mr.J.E was asked if he was aware of correspondence from the claimant’s representative and from the claimant to Dr.JS referring to a number of instances of abuse and that the claimant felt the company were attempting to minimise the abuse.Mr.J.E said at the time of the investigation the claimant gave him 2 examples .Reference was made to statements taken from attendees at the Townhall meeting which contained no reference to what the claimant said and it was put to Mr.JE that all of the grievances came from managers.Mr.J.E said that the claimant’s question to the HR manager shocked him and that was why he pursued a grievance.Mr.J.E did not recall telling the claimant that he was being punished for making a referral to the Equality Tribunal.Mr.J.E said that he recalled the evidence of Mr.D.T. that he had asked other employees about the Orange B allegation.Mr.J.E asserted that he carried out a proper investigation into the allegations of TM and the claimant.Mr.JE said that as far as he could recall when the claimant said he was called an Orange B he gave 2 examples.

The Hr. Manager clarified that Townhall meetings take place less than a few times a year – if staff have issues they raise it with their line manager.

It was submitted that the claimant was unfairly dismissed and it was contended that the disciplinary process was merely a paper exercise.It was submitted that statements were obtained by the investigators on the 24th.April 2018 and the respondent “ sat on them until the 26th.April 2018”.It was submitted that the evidence was drip fed   and it was advanced that witness statements were only issued during the dismissal meeting.It was contended that the statements should have been furnished in advanced of the dismissal meeting and that the respondent failed to take proper minutes of the meeting of the 26th.April 2018.It was submitted that the claimant was denied his rights to be legally represented throughout the process and the provisions of Lyons v Longford Westmeath Education and Training Board   [2017]IEHC 272 were invoked in this regard along with a series of additional authorities.

It was submitted that the more serious the matter , the more serious the procedures should be.It was advanced that the respondent failed to properly investigate the matter , that there was lack of proper recording of events and that there were clear breaches of procedures .It was submitted that no matter what the claimant said the decision had been made to dismiss him .It was submitted that the respondent could have imposed an alternative sanction such as suspension without pay but this had not been considered .It was submitted that the respondent’s failure to bring in an external person for the appeal was curious and that it indicated the mindset of the company .The respondent had no record of the handwritten statement in which the claimant sought to explain the context of his remarks and the company gave no proper consideration of the claimant’s submissions. It was submitted that Mr.K had elicited information from the claimant which resulted in further allegations being made against the claimant.It was submitted that the claimant was misled by the MD and that there was nothing in the internal procedures to preclude an external person presiding over the appeal. Shortcuts were taken to effect the dismissal and it was contended that when you go down the investigation route you must follow procedures. It was submitted that the company had denied the claimant his rights to have legal representation during the process and the provisions of Lyons v Longford Westmeath Education and Training Board [2017]IEHC 272 were invoked in this connection.

The claimant’s rep complained that neither of the 2 decision makers who decided on the dismissal were available to give evidence and that it was not a matter for the WRC to direct what witnesses attended the hearing.

In his direct evidence the claimant said that he complained to Mr.J. E of being called an “Orange B” on several occasions.Mr.J. E the asked him for examples of when and where and he referred to the new employee encounter and the coffee morning.The claimant insisted that he told Mr.J.E of being called an Orange B on a daily basis for several years. The claimant said he wrote to DR.JS (Joint CEO) because he was so aggrieved about how he was being treated. The claimant gave his account of the exchanges at the Townhall meeting and asserted that when he asked the HR manager why did you lie to the Tribunal , she replied it was your decision to take it to a tribunal.The claimant confirmed there was no written record or minute of the meeting where the claimant’s statement was taken.

The claimant outlined his account of the investigatory procedure and clarified that when he was dismissed he was escorted from the premises .The claimant stated that he had been asking the question for years and had never really got an answer .The claimant said that there was no discussion at his dismissal meeting – he was told his actions amounted to gross misconduct and he was dismissed.”The claimant said “ I didn’t get a reason”.The claimant said he did not recall what he said to Ms.TM at the time she complained about him.When asked about the effect being called an Orange B….. had on him , the claimant said that he felt less than other employees.

It was put to the claimant under cross examination that he did nothing about his grievance for years and opportunistically raised it when faced with a complaint by Ms.TM.The claimant responded that he thought it was time for him to make a complaint. The claimant said he did not recall what he said to Ms.TM at the time she complained about him.She was not around when he left the warehouse. When asked about the exchanges at the Equality Tribunal the claimant said that he did not recall the question asked of the HR manager but he did recall the answer because he knew the answer was wrong. The claimant said the HR Manager said that Ms.TM called him an Orange B…….. on only 2 occasions. When it was put to the claimant that there was a clear context he accepted he did not recall the question that was asked of the HR Manager.When asked about why he chose a public forum to raise the issue with the HR manager the claimant replied that it was a spur of the moment decision and he had not been planning anything. The claimant said he did not see it as a serious issue. The claimant confirmed that he was taken through his statement in response to the complaints about the question he raised at the Townhall meeting.The claimant said when he looked back at how other people were treated – he did nt have any warnings and yet he was sent straight for dismissal. When asked about what he thought of people going around making accusations of lying , the claimant said had he known only 2 incidences had been investigated he would have asked the question.

The claimant stated that he was unaware that Mr.K was part of the investigation – he said that Mr.K seemed to be in on it and was aware of the contents of the respondent’s initial letter about the Townhall meeting.

The claimant stated that he brought his hand written statement to the meeting on the 26th.April . He gave a statement at the meeting , the Investigator typed it up and asked the claimant to sign it.The claimant signed the statement and submitted his handwritten statement also headed “further information”..He stated that he was not asked about what was written in his handwritten statement   with the heading additional information.

I have reviewed the evidence presented at the hearings , the submissions of the parties and the authorities relied upon.I have considered in particular the numerous submissions by the claimant’s representative about being denied legal representation throughout the process and consider that the company’s position is consistent with the principles set out in Irish Rail & Barry McKelvey [2018] IECA 346 where it was made clear that a disciplinary process is not rendered unfair by a refusal to allow an accused employee legal representation in the conduct of the disciplinary hearing or investigation. Such a requirement could only arise in exceptional cases involving issues of factual or legal complexity which could not be adequately addressed without the assistance of a lawyer.   I have concluded that the instant case did not involve issues of factual or legal complexity requiring legal assistance.

I note from the earlier decision of the Equality Tribunal that the matter of the claimant being called an Orange B on 2 occasions is not recorded in the decision.In fact the text of the decision refers to the claimant being called an Orange B on “ a daily basis” and on “ numerous occasions”. It was the submission of the claimant’s representative that the claimant was treated unfairly with respect to the respondent’s handling of the complaint by Ms.T.M. Having considered the evidence of the HR manager and her confirmation that when MS.TM admitted to using the term Orange B in an interview with JE, she saw no requirement for any further investigation while at the same time acknowledging that JE and Ms.O B jointly interviewed the claimant arising from which he was issued with a final written warning. No records of these meetings or exchanges were submitted into evidence While the respondent acknowledged the unacceptability of the terms used by both parties , the justification for the harsher sanction on the claimant was another warning on his file. In light of the foregoing chronology of events , I find it was not unreasonable for the claimant to form the view that he was treated differently and unfairly to Ms.TM during this disciplinary process. While I acknowledge that the circumstances were different in that the claimant was already in receipt of a sanction and Ms.TM was not , the application of a different investigatory process for 2 individuals accused of unacceptable behaviour towards each other is inconsistent and potentially unfair.

I accept the merits in the claimant’s representatives contention of a number of procedural flaws in the processing of the claimant’s dismissal for example the failure to furnish the claimant with statements in advance of the first dismissal meeting on the 26th.April 2018 , the failure to record the minutes of that meeting , the failure to give consideration to the handwritten notes presented by the claimant at the 26th.April meeting as recorded by the respondent in their meeting of the 27th.April where it was deemed “this hand written note was nothing to do with the Investigation at present and the detail of this note had been dealt with in a Tribunal …….”.The rudimentary meeting records submitted into evidence support the claimant’s contention that his defence was dismissed and that no consideration was given to an alternative to dismissal. In this regard, it is noteworthy that neither of the 2 individuals who decided on the dismissal attended to give evidence at the hearing.I also consider it of significance that while the claimant’s colleague was issued with a verbal warning for calling the claimant an Orange B in 2012 , the claimant was dismissed for accusing the HR manager of lying to a Tribunal. The inconsistencies in sanctioning , the procedural flaws , and the disproportionate sanction of dismissal render the dismissal unfair and accordingly I uphold the complaint. Notwithstanding this , I accept that the claimant’s accusation against the HR manager at a townhall meeting was not reasonable  and I consider that this behaviour contributed significantly to the claimant’s dismissal – I have taken this into account in the quantum of the award of compensation of €20,000.