Complainant

Respondent

Parties

A Sales Professional

A Wholesale Business

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-00018456-001

11/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00018456-002

11/04/2018

The complainant filed his complaints on 11 April 2018.  On 10 September 2018, the Director General of the Workplace Relations Commission delegated the complaints to me, Stephen Bonnlander, for investigation, hearing, and decision.  I commenced hearing the matter on 11 October 2018.  After this, I entered into a written clarification process with counsel on both sides regarding the question of the right of an Adjudication Officer to compel witnesses for complaints brought under the Unfair Dismissals Acts.  The need to conclude this process to everyone’s satisfaction and in line with fair procedures necessitated further adjournments and the hearing of the cases was eventually resumed, and concluded, on 19 February 2019.

I might note at this point that it was clarified to my satisfaction that I do not have a right to compel witnesses for a complaint under the Unfair Dismissals Acts 1977-2015 if it was brought before the commencement of the Employment (Miscellaneous Provisions) Act 2018. I certainly did not have any such right in the within matter.

The respondent accepts that the complainant acted on a reasonable belief in making his protected disclosure, within the meaning of Section 5 of the Protected Disclosures Act, 2014, due to pricing irregularities which occurred in the respondent’s business.  The respondent’s general manager stated in evidence that once these matters were brought to her attention, she reviewed the entire matter thoroughly and implemented corrections.  The customer in question was subsequently reimbursed for rather significant overpayments. 

The respondent disputes that the complainant’s disclosure was properly made, as he included it as part of a written grievance about other work matters.  However, the witnesses for the respondent accepted in cross-examination that bringing a disclosure in writing to HR is in line with its policy and that the complainant’s only shortcoming was not to put it into a separate document.

However, the respondent disputes that the complainant’s employment was terminated due to him making a protected disclosure.  It states that the complainant already had a written warning on his file, and that a disciplinary investigation was launched due to an incident where the complainant disrupted a meeting and made the respondent’s general manager, who was pregnant the time, feel threatened and intimidated.  There were also financial irregularities in the complainant’s expense account, which, whilst quite minor for each separate occasion, did add up to a more than trifling sum. 

The documentation of the investigation, disciplinary, and appeals processes forms the bulk of the more than 1400 pages of documentary evidence which the respondent.   The complainant was allowed legal representation by his solicitor through the disciplinary and appeals process.  Ultimately the complainant was dismissed without notice and this dismissal was upheld on appeal.

The complainant, in the first day of his evidence, outlined the pricing irregularities which had arisen in the respondent business, which he believed to be deliberate.  The complainant had previously been the respondent’s general manager, then left, and subsequently returned in a senior sales role. He stated that he made a significant economic contribution to the respondent’s business in both roles. 

As against that, he accepted irregularities in his expense accounts, but stated that in his opinion, disciplining him for these was just petty relative to the monetary value of the sales agreements he concluded and certainly not a reason for dismissing him for gross misconduct.

As regards the incident where he disrupted the meeting to speak with the general manager, he accepts that this disruption happened, and that he wished to talk to the general manager urgently due to frustration with work processes which had arisen that day.  He strenuously denied, however, to have been threatening or intimidating towards the general manager in any way. 

 The complainant was extensively cross-examined on the mitigation of his loss.   He stated that he was in shock after his dismissal and found it difficult to turn his mind to job-hunting.  He also stated that the wholesale business in this particular field is rather small and that his dismissal without notice would have cast a cloud over him in the minds of HR managers in other such businesses.  Whilst the complainant did find work again after several months, it was for a less well paid position than that which he had occupied in the respondent business.

During the hearing of the complaint, a lot of time, and a great deal of documentary evidence, was taken up with establishing facts and assisting me in understanding the background to the pricing irregularities which form the core of the complainant’s protected disclosure.  It is not necessary to rehearse these in detail here.

In terms of formal process, I am satisfied that the complainant made a protected disclosure within the meaning of the Protected Disclosures Act, 2014, in writing, to the respondent’s HR manager.  That it forms the final two paragraphs, under a separate heading, of a longer written grievance does not invalidate it in terms of process.   To insist on the formalities which the respondent has argued the complainant should have followed raises the risk of severely limiting the protections for whistleblowers which the Protected Disclosures Act intends to establish.

I am also satisfied that the investigative and disciplinary processes which led to the complainant’s dismissal were handled in a formally correct manner.

That leaves the question whether the complainant’s dismissal without notice for gross misconduct was warranted, and where the complainant’s protected disclosure comes into it. 

At the core of the difficulties which led to the complainant’s dismissal were interpersonal difficulties with the respondent’s present general manager.  When the complainant had been general manager, Ms G. had been working for the respondent in a quite subordinate role.  By the time the complainant re-joined the respondent’s sales team, she had been promoted to general manager.  It is clear that the complainant found it difficult to accustom himself to the processes which Ms G. had introduced, and that he considered many of them unnecessary and in fact a hindrance when it came to winning business for the respondent.   The complainant had moments of quick temper as the hearing wore on, and whilst I accept his evidence that he never intended to intimidate Ms G., I can easily imagine that she felt intimidated by the complainant when he was in a state of significant frustration.  

I also accept that the respondent’s concerns about the complainant’s expenses were more than mere pettiness, if only for concerns about the equitable treatment of all staff. 

In summary, then, I am willing to accept that the difficulties Ms G. encountered in managing the complainant, and the concern about his financial claims, would be sufficient for a reasonable employer to separate from an employee like the complainant by way of dismissal, especially since the complainant had a previous written warning on his file.  I do not accept, however, that the complainant’s dismissal without notice for gross misconduct was warranted under the circumstances, and I am satisfied that but for the complainant’s protected disclosure, his dismissal would not have taken place in such a manner, especially in light of his long association with the respondent, and his substantive contributions to the respondent’s business.

The complainant is therefore entitled to succeed.

For the reasons outlined in detail above, I find that the complainant was unfairly dismissed from his employment with the respondent contrary to Section 6 of the Unfair Dismissals Acts 1977 to 2015.   I therefore order, pursuant to the provisions of Section 7 of the Unfair Dismissals Acts 1977 to 2015, that the respondent pay the complainant €5,000, subject to lawful deductions, in compensation for his dismissal.   

For clarity, I want to note that the complainant’s financial loss is difficult to determine in this particular case and beset by a lot of hypotheticals.  The complainant did make efforts to mitigate his loss and eventually succeeded, but states that this was hampered by his emotional state.   On the other hand, the complainant may well have experienced a regular dismissal due to other difficulties which arose in his employment.  In this situation, I find it appropriate to have recourse to Section 7(1)(c)(ii) of the Unfair Dismissal Acts, and to set the above sum as being just and equitable in the circumstances.

Unfair Dismissal Acts 1977 – 2015 – protected disclosure – form of protected disclosure – dismissal for gross misconduct without notice influenced by making of protected disclosure.