Complainant

Respondent

Anonymised Parties

An Operations Manager

A Security Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00011602-001

29/05/2017

Submissions for this complaint were substantial with copious volume of documentation and oral evidence heard over four days. Whilst I will not be referring to every letter, email, incident, witness, event or reference every case law presented, I have taken into account all the submissions including oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.

The complainant details that he was unfairly dismissed by the respondent, a claim which the respondent denies.

A very brief chronology of events can be summarised as follows:

An investigation was held into grievances against another employee, hereinafter referred to as Ms Z 26th May 2016 and on that day and days thereafter, grievances were also raised against the complainant; resulting in his suspension with pay.

On 15 July 2016 an investigative meeting took place with the Industrial Relations Manager, hereinafter referred to as Mr A. Mr A issued a report dated 30 September 2016 summarising the matters against the complainant and recommending disciplinary action and recommending an exploration of whether his employment could be continued.

A disciplinary meeting took place approximately 30th November 2016 with a manager, hereinafter referred to as, Ms B.

On 11th January 2017 the complainant was advised that he was issued with a First and Final Written warning.

On the same day, the complainant was also invited to attend a reconvened meeting to discuss his continuing employment with the respondent held on 17th January 2017.

On 26th January 2017 the complainant was advised of his dismissal owing to some other substantial ground and given 12 weeks notice to find alternative work.

The complainant appealed the decision which took place on 23 February 2017 with a manager, hereinafter referred to as, Ms C.

On 17 May 2017 the Complainant was advised that his appeal was unsuccessful.

It was detailed that on 31 July 2014 the complainant received a final written warning which expired in July 2015.

When employees raised grievances against Ms Z on 20th May and thereafter, they were investigated by Mr A. During this investigation the grievance officer Mr A was approached by 10 other employees who raised more grievance against Ms Z and also the complainant and they also had signatures of more employees who had grievances against Ms Z and the complainant.

Mr A was led to believe by these employees that there would be a picket placed on the facilities if he did not respond immediately to these grievances. He was left with no alternative but to suspend the complainant with pay pending an investigation following consultation with senior personnel.

Mr A and Mr X sought to make contact with the complainant to suspend him but were unable to contact him and a sick cert was subsequently submitted by the complainant until 2 June 2016. On 31 May 2016 a grievance letter was submitted signed by 28 members of staff complaining about the complainant and Ms Z. A decision was made to interview all those who signed their names individually to ensure that nobody had been coerced into signing the letter. More employees came forward with grievances against the complainant and on 15 June 2016 Mr A met with additional employees. Correspondence was exchanged between the complainant and Mr A regarding the reason for the complainant’s suspension and on 15 July 2016 Mr A held an investigative meeting with the complainant regarding the complaints. The complainant’s response was to deny that he had ever behaved in the manner asserted by the staff. The complainant asserted that he was victimised for having previously spoken out against Mr X when Ms Z raised a grievance against Mr X. The complainant was advised that he could suggest people to be interviewed in support of him and/or his assertions. The complainant was given access to a recording of the investigative meeting on 22nd June 2016 and on 4th August 2016 the complainant provided a list of 17 people to whom he wished Mr A to speak with and Mr A was able to speak with 12 of these.

In total Mr A met with approximately 55 members of staff of which 50 asserted that they had been bullied or mistreated by the complainant   or had witnessed others being bullied or mistreated by him. These included some persons whom the complainant had put forward to speak on his behalf.   20 of these employees had stated that if the complainant returned that they would resign and Mr A was fully convinced that they would resign.

A report was issued by Mr A on 30 September 2016 summarising the matters and recommending disciplinary action proceedings be instigated   to consider the allegation that the complainant had “alienated the majority of the staff under (his} control” and that he had “bullied and/or mistreated such staff to the point where they no longer feel they can work with you”. Mr A also recommended that the disciplinary officer should consider whether even if innocent of the allegations, it was possible for the complainant to return to work. A copy of all evidence, including the report was provided to the complainant on 3rd October 2016. It was confirmed that a copy of the transcript of the complainant’s meeting was not provided as the complainant had access to the recording if he needed it.

The disciplinary meeting took place 31 November 2017. The complainant had requested his personnel file but it had gone missing and despite all efforts by the respondent they could not locate it. The complainant attended the disciplinary meeting unaccompanied and disputed all the allegations raised against him. He was issued a First and Final Written Warning dated 11th January 2017 and was also advised separately by letter that there would be a reconvened meeting to discuss his continuing employment.   This was reconvened to 17 January 2017 and during this time the respondent spoke with some of those who had raised grievances to ascertain if they could work with the complainant and build relationships. The employees refused to work with the complainant. It was clear to the respondent that the employee would never work with the complainant. The complainant was advised of his dismissal on 21 January 2017 owing to some other substantial ground with 12 weeks’ notice given, during which time the respondent would look at alternative positions in the organisation for the complainant.

The complainant appealed the decision and advised that was open to mediation and if he had to look at alternative sites, it would need to include travel expenses. No other roles were found and the decision to dismiss was upheld.

Evidence of Mr A

Mr A outlined that there were a huge amount of emotion amongst the employees who raised grievances against both Ms Z and the complainant. He confirmed that he had serious concerns that the employees would place a picket on the site and that they were all shouting at him at the group meeting and that it was very difficult to deal with the quantity of complaints against the complainant. The site would not have survived with that amount of people walking out. Mr A did not know how it was leaked to the complainant that he was to be suspended. It became evident to him that regardless of any disciplinary action, a decision would have to be made regarding whether the complainant could continue in employment as nobody wished to work with him. He detailed that he had vacation booked during the investigation and thus the reason for some delays in the investigation. He did not see it as cost effective to pay for somebody to transcribe the meeting that he had with the complainant as it may have cost €1,000.  

In cross examination Mr A detailed that there was no requirement for him to follow the laws of natural justice as it was an investigation that he carried out. However, everything was given to the complainant when the report was published.   It was also confirmed that his report contains conclusions and recommendations and he confirmed that he did not read the handbook but that he is a barrister.

Evidence of Ms B –Manager who conducted Disciplinary

Ms B confirmed that she was tasked with deciding what disciplinary action, if any, would follow from the investigative report and that her role was to hear the complainant’s side but not investigate the issue again.   It was her opinion that that there was no hope of supervisors working with the complainant, therefore, she did not think mediation was a worthwhile possibility. Ms B also outlined that she did not have any dates and times of when the alleged issues which were the subject of the grievances occurred but that on the balance of probability they occurred. Ms B outlined that she looked for other possibilities such as redeployment.

Under cross examination Ms B confirmed that she did not read the grievance and disciplinary procedure or bullying and harassment at the time but was familiar with it. She also confirmed that she was aware the complainant had confirmed his concerns about being victimised. It was outlined by her that she believed that she was utilising the bullying and harassment procedure. She confirmed that it appeared those who made complaint against the complainant had similar statements but at the time she was not aware that they had collaborated.   Ms B confirmed that she relied on the case file when deciding on what action to take against the complainant and did not listen to the recording of the meeting between the complainant and Mr A.   It was confirmed by her that she is not a qualified mediator and has no experience in mediation but she did not believe the complainant was suitable for mediation. She confirmed that she looked at the respondent’s website to see if there any other roles but saw none. It was confirmed that she made no other enquiries around available positions.

Evidence of Ms C – Manager who heard the appeal

Ms C’s role was to hear the complainant’s appeal against the first and final written warning and to hear the appeal against the decision to terminate his employment. She confirmed that she spoke with the complainant about mediation but did not think it would be good for the complainant to be involved in mediation as it might not be safe for him. She detailed that she did not believe the complainant suffered any detriment owing to the length of the suspension as he continued to be paid.   In hearing the appeal, she confirmed that she did not listen to the complainant’s interview with the investigator Mr A. It was confirmed by her that the statements from those who made allegations against the complainant should have been signed but that this did not cause her any significant concerned. Ms C confirmed that while she asked some individuals who had raised grievances whether it was their own work and they replied it was, she did not pursue the matter with them around how wording, including typos, was identical to others who raised grievances.

In cross examination she confirmed that she could have conducted the investigation better and that she put her hands up that she never asked Mr X whether he had been involved. She confirmed that she did not ask any of the parties if they were interested in mediation. In response to questions regarding potential new positions she, confirmed that she asked HR and they said there was nothing for him and she believed the employees expectations around mileage/transport would have prevented him taking up any other jobs. She detailed that delays on her part were unavoidable as she had booked a safari before she was aware that she would have been involved in this appeal. It was her opinion that there is no smoke without fire with regard to the allegations that were made against the complainant.

The complainant commenced work on 22 April 2005 and details his employment ended by way of dismissal on 21 April 2017.

The complainant detailed that during his employment with the respondent he had been promoted and that there had been no significant issues at work.   However, he believed that when he was called as a witness in February 2016, to an incident between Ms Z and her manager, hereinafter referred to as Mr X; he had concerns that he might be victimised for giving evidence. It was his belief that the events leading to up to and including the termination of his employment were related to this incident in February 2016.

On 20th May 2016 he received a text from Mr X looking for keys of the office and later advising the complainant to report in early the following morning and not to talk to anyone else.

Later that evening he received a call from Ms Z who detailed that she had heard that the complainant was going to be suspended with pay pending an investigation. The complainant detailed how unwell he felt on hearing this and advised Mr X that he would not be going to work that day. His doctor certified him unfit for work until 7th June 2016 and he also advised Mr A of this. He was later informed that he was suspended with pay pending an investigation into grievances by employees against him. No information was submitted to him regarding what were the grievances and on 15th July 2016 an investigation meeting took place conducted by Mr A. He was upset that it was taking so long for this investigative meeting. He was told there was nobody available as note taker and the meeting was recorded by electronic device but he was never provided with a transcript of this meeting and instead was provided with an electronic device which contained the recording and he was told he could transcribe the electronic recording if he wished. The complaints which he was advised of were vague yet on 3rd October 2016 the complainant was advised that disciplinary action was recommended. It was also detailed in this investigation report that there would need to be consideration given around the complainant’s return to work.

On 30th November 2016 a disciplinary meeting took place conducted by Ms B and her decision dated 11th January 2017 issued the complainant a first and final written warning. On the same date, the complainant was also invited by a separate letter to a reconvened disciplinary meeting which was conducted by Ms B on 21st January 2017 whereby the complainant was advised he was dismissed with 12 weeks notice because staff had allegedly advised the respondent that they could no longer work with the complainant. The complainant appealed both the decision to issue a final written warning and appealed the decision to dismiss and was advised to submit these appeals to Mr A.   These appeal meetings took place on 23rd February conducted by Ms C and he was advised on 17th May 2017 that the decision to dismiss was upheld.

Direct Evidence of the Complainant

The complainant outlined that he believed that the company failed to make him aware of the specific complaints made against him and that it was a contrived effort by some individual(s) to get rid of him, which was possibly related to him giving evidence into the incident in February 2016 involving Mr X and Ms Z. He also outlined the stress this has had on his family life and that his reputation has been impacted by the behaviour of the respondent. It was outlined that during the long process which he had to endure owing to continuous delays by the respondents; minutes of meetings were not provided to him including his own meeting with Mr A. Instead for that meeting he was given a recording of the conversation and the company suggested he make his own arrangements to transcribe this recording if he wanted a copy. Furthermore, his request for a third party to represent him at the meetings were declined. During different stages of the process the respondent did not interview all those who allegedly made allegations against him and only asked some supervisors whether they would work with the complainant.

It was outlined that he was called as a witness in an investigation against Mr X, after which these difficulties appeared to develop. When he was informed unofficially that he was going to be suspended, it came as a complete shock to him. He was unable to sleep and had to be prescribed a sleeping pill and sedative. He detailed he did not know specifically who was making complaints against him and what the complaints actually were. He detailed that during the investigation he looked for a copy of his file and copy of his own interview but he was advised that his file was missing and was just given an audio version of the file. When he eventually got a copy of some of the complaints he felt they were very vague, some were unsigned and undated with no details of what he was actually accused of and they made reference to complaints against Ms Z also.   He outlined his upset when Ms B had originally refused to reschedule a disciplinary meeting following the death of his brother and that he had to attend his doctor for this extreme upset and stress caused by it. It was him who suggested mediation but he felt that the respondent was not interested in mediation and his request for mediation was dismissed. It was detailed that no investigation took place into the breach of confidentiality which occurred when the complainant found out through others that he was to be suspended and no reasonable efforts were made to look for alternative work for him.

Under cross examination the complainant confirmed that he may be a witness for a personal injury claim by Ms Z. He also confirmed that when the report issued to Ms Z, following her grievance against Mr B, the complaint’s name was not mentioned. It was put to the complainant that when the decision was made that he could no longer work at the premises where he had been working, he would not relocate without the company paying him mileage. He outlined that he was willing to take a company car or have mileage paid. The respondent also put to him that Ms C had spoken to employees regarding whether they wanted him back at work and they did not. He replied that she had only spoken to approximately 3 supervisors and not all those who allegedly made complaints against him. It was also put forward to him that he was always open to feedback such that when Ms Z advised him that his local accent was very “strong”, he was not offended by her feedback.

Evidence of Ms Z

Ms Z advised that she had been previously told by her manager, Mr X, to ‘ease’ the complainant out of the company as he was too soft on people.   She outlined the pressure she was under to regularly discipline employees and that she made a complaint against her manager Mr X in February 2016. She outlined some of her complaints were upheld but some were not. She detailed that she was so upset at the manner in which the report into her grievances was made available that she collapsed at work and had to be hospitalised.   Shortly after this she received a text from a person who advised that the complainant was going to be suspended.  

Under cross examination Ms Z detailed that the blame had been put on the complainant for some work issues which were not his fault including an issue that was actually the fault of Mr X’s wife, who also worked at the company. Ms Z detailed that she had given the complainant a tough appraisal which included making reference to his accent but that he was not upset with her feedback.

Section 4 of the legislation sets out :

“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.”

Section 6 details that

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

The respondent details that a first and final written warning was issued because of the complaints against the complainant and that the respondent relies on Section 6 for dismissing the complainant where they set out that there were substantial grounds justifying the dismissal. These substantial grounds were that the complainant could not continue to work for the company, following a breakdown in the relationship between him and the vast majority of his team. It was outlined by the respondent that a full and through investigation into the allegations and a fully investigation into options for reestablishing relationships, including mediation and relocation, took place.

The complainant has set out what they regard as numerous, significant breaches in procedure. These include that the complainant found out through unofficial sources that he was to be suspended; that the respondent did not provide a minute taker and recorded the investigate meeting by an electronic device with a copy of that transcript never provided to the complainant nor was a copy provided for the hearing. Further breaches outlined included that the complainant would have had to incur the cost himself to have this transcribed and because the complainant never received a copy of the minutes, minutes were never approved thus the complainant was not aware if his amendments were considered. Also these recordings were never listened to or taken into consideration by Ms B or Ms C.

It was also put forward that the complainant never received specific details on the dates and times of alleged incidents; that many of the statements furnished were not signed; that there were discrepancies in the reports from supervisors; copying and pasting of statements which were never properly investigated nor taken into consideration by the respondent.   It was also put forward that the punishment was too severe; that there was no recognition of the complainant’s 12-year service; that complaints against the complainant and Ms Z were not ‘separated’. More breaches which it was suggested occurred included that those involved did not seem to know which procedure they were following, had not read the appropriate procedures and did not follow same and that, the involvement of Mr X into the events were never properly investigated.

Section 14(1) of the Act refers to “a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee” i.e. the employer’s stated disciplinary policy.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet,UD1294/2008.

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited[1973] IR 388, also detailed:-

"This court in re Haughey[1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

The court in Glover v BLN Limited(1973) IR 388 decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. It is quite clear from the case law of the superior courts, that there is no fixed standard of natural justice which lays down how certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances.

Furthermore, Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect but it should come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances. This was also detailed in Mooney v An Post ([1994] E.L.R. 103), where what exactly is required of an employer to satisfy the requirements of natural justice may differ from case to case.   In that case, Keane J. stated that the two principles of natural justice, namely “audi alterem partem and nemo iudex in causa sua cannot be applied in a uniform fashion to every set of facts”. Therefore, while employers are required to afford natural justice and fair procedures to employees when carrying out disciplinary procedures, regard must be had for the particular circumstances of the case to ascertain what the requirements of natural justice and fair procedures demand in the particular circumstances. If the process followed by the employer, while not entirely faultless, is within the scope of what could be considered a reasonable response in the particular circumstances, then the employer's actions will be deemed to be acceptable.

However, there are certain fundamental requirements of fair procedures as outlined in Glover v BLN Limited(1973) IR 388 that cannot be dispensed with regardless of the particular circumstances that arise in an individual disciplinary matter. They include but are not limited to:

(i)                  the requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process;

(ii)                the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and

(iii)               in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.

It is the above fair procedures that will be the focus in this instant case, but this not does not purport to be a comprehensive statement of all fair procedures.

(i) The rationale is clear as to why the person who is subject to a disciplinary investigation should be made fully aware of the complaint(s) against him.   This is to ensure that the complainant has a meaningful opportunity both to prepare and to present his defense to the complaint(s) as detailed in Preston v. Standard Piping[1999] ELR 233.

In this instant case, the Respondent dealt with many allegations which had been received against the complainant. However, many of the allegations were lacking in in specific details around what the actual allegations were. It is evident that the respondent was somewhat overwhelmed by the quantity of allegations made against two employees, but this does not excuse the respondent’s failure to separate out allegations against two separate employees (Ms Z and the complainant). The pertinent information as to what exactly were the specific allegations against just the complainant was absent and thus innuendo rather than specific allegations was presented to the complainant and this innuendo continued from the investigator, the disciplinary manager and the appeals manager without appropriate questioning; resulting in a decision to issue a First and Final Written warning and subsequently to dismiss the Complainant.

When an investigation is carried out there may be occasion where, as detailed in Kelly v Minister for Agriculture[2012] IEHC 558, the full range of fair procedures might not apply at the investigative stage.

“I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the inspector’s work. The procedures identified by the inspectors following the outcome of the first stage accord in my view with the requirements of fairness and justice and guarantee, where appropriate, the exercise of the rights identified in Re Haughey.”I gratefully adopt this dictum of the late Shanley J. It is fairness and justice which is to be sought in any investigative process and it is to this process as a whole that the court must look to determine those basic requirements were met.”

However, a significant difference with the instant case is that in the instant case Mr A’s investigation was more than just seeking out facts. It is very evident that Mr A also reached conclusions and recommendation - all without applying the laws of natural justice and it is questionable to what extent fairness and justice was applied. Instead his conclusions and recommendations were taken as fact by Ms B when she decided on what disciplinary action she would apply. Whatever gaps there had been in the investigation could have been perhaps addressed at this disciplinary stage but were not; nor were they addressed later at the appeals stage by Ms C.

(ii) The procedures provided for in the Company’s handbook, are brief but it is noteworthy that that it was unclear from the respondent’s witnesses, which procedure in the handbook they were following. From those involved in the investigation, the disciplinary process and appeals process there was uncertainty in their evidence as to whether they were following the disputes and grievance procedure or the disciplinary rules and procedure or the disciplinary appeals procedure or the harassment policy and procedure.   Witnesses also detailed that they had not read the policies.

The reason for dismissal given to the complainant in his letter of dismissal is that the complainant is “unable to work at (name of respondent) and that your employment should be terminated”. I do not see this provided for within the respondent’s disciplinary procedure. It was put forward by the respondent that their response was similar to the response by the employers in the cases of Henderson V Connect (South Tyneside) Ltd 2010 IRLR 466, Masini V Compass Group UK & Ireland Ltd ET/2701 1121/2014 and A Chicken Catcher v A Poultry Contractor (ADJ-00003959), where in those cases, in effect, the dismissals were found to be fair when it was deemed that the employer did all that was reasonable. However, I do not find evidence in this instant case that the respondent did all that was reasonable.   The respondent did not provide any credible rationale for their failure and their refusal to transcribe the minutes of the investigation meeting with the complainant. The issue of costs associated with same were mentioned by the respondent, but no evidence was provided that such costs would have been excessive, and I also note that the respondent incurred the cost of the suspension of the complainant with pay for almost 1 year. The impact of the respondent’s refusal to transcribe the recordings of the minutes were significant as it appeared that Ms B never listened to these recordings and had no transcript and therefore could not have taken into consideration its content when deciding on disciplinary action. It appeared also that Ms C never listened to these recordings and had no transcript and therefore could not have taken into consideration its content when reaching a decision at the complainant’s appeal; and indeed did not take into consideration that neither the complainant nor Ms B had reviewed the contents of the interview and, for completeness, neither the transcript of this meeting nor the recording was available at the adjudication hearing. It seems extraordinary that the respondent believed that it was sufficient enough to make decisions based only what they had from those who made the accusations.

Furthermore, in terms of what might have been considered ‘reasonable’ by a respondent, it was evident that no consideration was given by the respondent to mediation and how it might have assisted the parties. When one considers that the complainant’s alleged actions in the grievances did not warrant dismissal (as he was given a Final Written Warning for whatever part he may have played in that), then the option of mediation if explored appropriately might have been a suitable option to resolve issues. The failure to explore mediation and the failure to adequately investigate suitable roles for the complainant (in the event that other roles for the complainant actually had to be pursued), is a strong indicator of lack of reasonableness by the respondent.

(iii) One of the key principles regulating the reasonableness of a dismissal is compliance with the principle of proportionality as referenced in McCurdy v. Adelphi[1992] ELR 14. The principle is a component of the general section 6(7)(a) principle of reasonableness. It is also a component of SI 146 of 2000, imported by section 6(7)(b) of the Act.

There appeared to be a recurrent theme running through some of the meetings with the investigator where he regularly asked the accusers would they continue working with the complainant.   While it may have been a challenging situation for Mr A, one might have expected Mr A to actually investigate the grievances instead of investigating whether employees wanted to work with the complainant – at this early stage. This lack of clarity around what he was investigating was further evident when he opened a meeting with an employee on 14th July 2016 and asks “one of the things the letter says is you can no longer work with the complainant or Ms Z. I want to know what that statement means for you”. When this employee mentions an incident that occurred, Mr A does not ask any follow up question that might be expected by way of investigating any such incident.

When the Respondent commenced the disciplinary process that culminated in the Complainant’s summary dismissal, the Complainant did not have any live warnings on his personnel file, yet the respondent mentioned repeatedly at the adjudication hearings that the complainant had an expired warning.   This is particularly noteworthy when one considers that regularly the complainant sought access to his personnel file to review what he regarded as positive performance appraisals and yet on 14th October 2016 he was advised by the respondent that they “do not consider it (his personnel file) a necessary document for the purposes of the disciplinary hearing” and Ms B in the minutes of her meeting with the complainant dismissed the complainant’s repeated request for the file, “well it’s not here so let’s leave it at that”.   It would appear that the expired warning on his mislaid personnel file was relevant in determining disciplinary action but was not relevant when the complainant sought out what he regarded as positive appraisals. Indeed, this approach of Ms B continued when she details at the disciplinary hearing “I’m conducting the meeting, so I will instigate what minutes we are going through and where we are at”. While it can be difficult sometimes to interpret the specific tone of written transcripts of meetings; there appears to be a sharpness in Ms B’s tone when responding to the complainant’s questions. This includes when the complainant questioned if those who raised the grievance collaborated together, Ms B appears irritated by the question and dismisses it, “clearly they sat down together, it was a collective perspective and they made an error…but I don’t think they are collaborating against you”. Yet this allegation of collaboration was never investigated to any significant extent nor does it appear to have been investigated to any significant extent whether or not Mr X played any role into the events that occurred.

The respondents’ witnessess gave evidence that the complainant’s actions were so serious it was the reason so many employees made complaints against him. However, there is an absence to the specifics of what exactly the complainant’s actions were. It should be also noted that the respondent’s policy provides for a First Written Warning OR a Final Written Warning and nowhere is there mentioned of a First AND Final Written Warning. Ms B in her evidence did not seem to be aware of this anomaly. The warning given to the complainant is detailed as owing to “the volume and strength of feeling emanating from the staff demonstrates something is badly wrong”. It was not detailed in the warning why if the respondent found that his performance resulted in “the culture of fear and vulnerability amongst staff members” they did not terminate his employment but during the hearing it was put forward that his employment was not terminated owing to his length of service. It is also detailed in the warning which the complainant received that “it is proven that your behaviour has led to staff feeling they can no longer work with you”. No evidence was presented by the Respondent that any serious consideration was given to any sanction other than summary dismissal at either the disciplinary or appeal stages. While there would have to be some sympathy for what the respondent was faced with, whereby they had a large number of employees raising grievances against 2 employees, and at least of those employees, the complainant, was denying any knowledge of having done something wrong; it does not excuse the responsibility of the respondent to appropriately investigate. It appears that the more the complainant denied any wrong doing and, importantly, the more he asked for specifics of same, the more entrenched, frustrated and adamant the respondent was he had done something wrong and that they were going to dismiss him for it.

This decision to dismiss, resulted in the respondent failing to engage in any meaningful efforts to look at alternatives, including their refusal to engage in mediation, despite the complainant’s willingness to engage in mediation. The most minimalist effort was made by the respondent to look at alternative roles for the complainant which amounted to checking their own website. It would appear that the respondent was holding to the view as detailed by one of the witnesses “there is no smoke without fire”.

Having regard to the foregoing, and the evidence proffered by the Respondent’s witnesses, I find the sanction of dismissal was unfair and unreasonable.

Having considered the remedies available I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case. With regards to mitigation of loss, a significant portion of time was taken up at the hearing detailing whether the complainant had appropriately mitigated his loss. I am satisfied that he has done so and note that he is currently in employment with more than one job earning less than previously.

Having assessed all the information before me I find that that the Complainant has suffered financial loss as a result of the dismissal he has suffered. I find it just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €15,500.

I find that the decision to dismiss the complainant was unreasonable and unfair and that the claim is well founded. I find it just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €15,500.

Unfair dismissal, suspension,