Complainant

Respondent

Anonymised Parties

A Compliance Officer

A Foundation

Representatives

LK Sheilds, Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00029770-001

18/07/2019

The Complainant, who is a qualified solicitor was employed by the Respondent as director of compliance from 11 December 2017 until the termination of his employment.

In the statement issued in support of his claim the Complainant asserts that he was unfairly dismissed due to:

Deliberate and premeditated strategy and tactics of the company relating to: historical, false, misleading and malicious complaints made about my conduct [which] had no basis, in fact, or otherwise; and

The company simultaneously attacked my; good name, character and reputation which had no basis, in fact, or otherwise to discredit me and create a false narrative with the assistance of the legal professionals as referenced by the company.

In fact, the Complainant was dismissed because he had made a number of very serious allegations of wrongdoing and professional misconduct against his colleagues, without having a reasonable justification and factual basis for doing so.  

A statement of the charges which ultimately resulted in the dismissal of the complainant was set out in a letter to him on December 10th, 2018 from the Operations Director (OD).

Following a fair disciplinary process which included an independent, external appeal two of the charges were upheld and on that basis the complainant was dismissed.

The essential relationship of trust and confidence with his employer had been damaged beyond repair and the conduct of the complainant was fundamentally incompatible with the continued maintenance of a working relationship with his employer.

On December 10th, 2018, the complainant was invited to attend a disciplinary meeting in relation to allegations that he had conducted himself in a manner likely to irreparably breach the trust, confidence and working relationship between him and his employer.

A transcript of the meeting which took place on December 13th, 2018 was attached as evidence.

Following that meeting, the OD wrote to the complainant on December 19th, 2018.

Following queries raised by the complainant during the disciplinary meeting with the OD, further information was sought by him from other employees and these were provided to the complainant by email on January 4th, 2019 with details of the information gathered in this regard.

The Complainant responded by email on January 9th, 2019.

By email dated, the complainant emailed the OD on January 14th, 2019 under the heading “Response to Outstanding Queries”.

On January 16th, 2019, the Complainant was provided with the OD’s report of the December 13th meeting. This upheld the allegations made against the complainant.

As a result, the OD decided it was necessary to convene a second disciplinary interview to decide on disciplinary sanction and he wrote to the complainant to this effect on January 16th, 2019

This meeting took place on January 23rd, 2019. The complainant was notified that he was entitled to be accompanied by a fellow employee or trade union official, but he did not avail of this.

The decision was communicated on January 24th, 2019, as follows:

“The Company Disciplinary and Dismissal Procedure provides as follows: “Gross misconduct is any form of misconduct that irreparably breaches the trust and working relationship between [the respondent] and yourself”. Based on the findings I reached as set out in my disciplinary report dated 16 January 2019, I am of the view that your conduct has irreparably breached your trust and working relationship with the Company and that in the circumstances it amounts to gross misconduct.”

It continued as follows:

“I have considered all alternatives to dismissal but given the clear and absolute breakdown of the working relationship between you and the Company and the responses provided by you during the course of this disciplinary process, I am of the view that the only appropriate disciplinary sanction is dismissal.”

Notwithstanding that the complainant was dismissed for gross misconduct, he received a payment of two months’ salary in lieu of notice. He was also advised of his right to appeal the decision within five days.

He did so on January 30th, 2019.

The Respondent appointed an independent external decision maker; a Barrister to hear the appeal. (Hereafter, the DM; decision maker)

The DM scheduled the appeal hearing to take place on February 27th, 2019 and a copy of the transcript of that hearing was submitted in evidence. At that hearing the Complainant was afforded the opportunity to again answer the disciplinary charges against him and make representations.

Following that appeal hearing, the DM wrote to the Respondent’s solicitors on February 28th, 2019 seeking additional information. The Respondent’s solicitors replied on March 4th, 2019 enclosing a booklet of documents requested.

On March 8th, 2019, the DM notified the complainant of his Decision on the appeal. He upheld the appeal against two of the four charges against him but upheld the original decision on two others.

The full written determination was submitted in evidence (and the DM also gave oral evidence).

Some relevant extracts are as follows. the DM concluded as follows in relation to those charges:

The two allegations upheld were

1.       “Allegation concerning [the complainant’s] email to [A] dated 2 September 2018

2.       “Statements made by [the complainant] in amendments to the notes of the probationary meeting held on 9 May 2018

[The complainant] accepted in the course of the hearing that each and every one of the statements he is alleged to have made in the email dated 2 September 2018 were made by him. The complainant] maintained, however, that there was a reasonable justification and factual basis for making those statements.

In relation to the first of these the complainant did not deny that he had made the statements complained of but concentrated on alleged procedural shortcomings in which he was presented with the issues, and for example his right to cross examine. But as there was no conflict of evidence then a need for cross examination did not arise

In relation to the copying of an email the DM concluded;

[A]’s email of 28 August 2018 sought to correct [the complainant] on his use of titles within the Company, its tone and content was moderate and reasonable.   It was not “inappropriate, reckless, unjust and unprofessional” or “malicious”, and it did not serve to create an “intimidating and hostile work environment”. There was no “explicit threat” in the email. In short, [the complainant]’s characterisation of [A’s] email had no basis in fact.

The DM went on to reject the criticism of A for copying the email on these grounds, and likewise found that it did not relate to the disciplinary action.

The DM went on to conclude;

As such, I do not accept that the statements made by [the complainant] in his email of 2 September 2018 were objectively justified, or that those words had a factual basis. The words used by [the complainant] in that email were intemperate, inflammatory, inappropriate and unjustified. There was simply no basis for the statements made by [the complainant] in the email.

In relation to the second allegation the DM concluded;

Hence, [the complainant] decided, as Director of Compliance with the Company, to state in writing, after advising that it would be a commercial decision to proceed, that the Company’s decision to proceed with the transaction “was both completely reckless and negligent if advice was not sought”.

I find that [the complainant]’s decision to make this allegation was inexplicable and unjustified.

The words used by [the complainant] showed incredibly poor judgment, as they suggested – without justification – that the Company and certain employees had acted completely recklessly and negligently in relation to what was a large transaction.

It was clear in the course of the hearing that [the complainant] did not regard the words used by him in relation to this issue as anything other than appropriate. I do not understand how [the complainant], being a qualified solicitor working in a compliance role, can have regarded the statement he made as appropriate.

I find that so much of the allegation as concerns [the complainant]’s statement in respect of the purchase of the [named] Hotel is substantiated.

In seeking to justify the statements, [the complainant] appeared preoccupied with alleged procedural shortcomings in the manner in which the allegation was made against him without “proof evidence and facts”, and with his alleged right to cross-examine [A]. Clearly, no conflict of fact arose on foot of which cross-examination might have been required, as [the complainant] accepted that the statements were made and that they were made in response to an email sent by [A] on 28 August 2018.

In his evidence to the hearing the DM stated that he was a barrister with good experience of employment law and had previous experience of adjudication on such matters. He had no conflict of interest in hearing the appeal and proceeded to do so.

He had asked for a summary of the complainant’s submission and was presented with a document that ran to one hundred and forty five pages.

He did not accept any criticism that he breached the requirements of fair procedure. The essential facts of the matter were not in dispute and therefore witness evidence was not necessary as raised by the complainant. He had sufficient information from the submissions of the parties to make a decision.

In relation to the second issue referred to above he did hear a witness who was cross examined. (Another witness sought by the complainant had left the company).

The DM also stressed that he upheld two of the complaints on their merits. However, the complainant was evasive in some of his submissions and demonstrated a lack of insight into his actions, in particular the allegation that a manager in the company had been ‘reckless’. The complainant also accepted at the appeal that he had attributed comments to another co-worker which she had not used.

The complainant demonstrated a lack of insight or a willingness to withdraw the comments which led the DM to conclude as he did in upholding the sanction. It was his view that trust and confidence had broken down.

At all stages of the process the DM stated that he did his best to apply principles of fair procedure as appropriate.

As a result of the foregoing, and having upheld the charges specified above the DM reached the following conclusion in relation to the issue of sanction:

“Sanction

I have found that two of the allegations made against [the complainant] are substantiated. I am now required to consider whether dismissal is the appropriate sanction for the misconduct which [the complainant] has been found to have committed.

I must consider whether [the complainant]’s actions were so serious that they amounted to repudiation of the essential terms of his contract justifying dismissal without notice.   In other words, did [the complainant] irreparably breach the trust and working relationship between him and the Company such that the Company should no longer be required to retain him as an employee?

[The complainant] argued that the allegations levelled against him did not entail gross misconduct, since they did not fall within the categories of gross misconduct listed at page 22 of the Company’s Employee Handbook. I do not accept that there is any merit in this submission, given that the Company’s Employee Handbook makes clear that the list of examples given therein is not exhaustive.

As Director of Compliance, [the complainant] fulfilled an important and trusted position within the Company. The misconduct which he committed entailed him using, in the context of written communications, language that was inflammatory, excessive and without any reasonable basis or objective justification.

In one of the instances relating to changes made to the minutes of his probationary meeting, the written statement made by [the complainant] alleged, without justification, recklessness and negligence by the Company and its employees. In another written statement, [the complainant] used materially misleading words concerning a complaint made to him by Ms [B], with potentially serious repercussions.

On more than one occasion, [the complainant] used language in respect of or towards the Chief Executive Officer of the Company [A] which was inappropriate, inflammatory, wholly disrespectful and without any justification.

In light of the foregoing, it seems to me inconceivable that the Company could continue to maintain a trusting working relationship with [the complainant].

When questioned as to his ongoing relationship with the Chief Executive Officer should he return to the Company, [the complainant] initially suggested that this issue was irrelevant, as he would not have to report directly to the Chief Executive Officer. This reflected an apparent misunderstanding on [the complainant]’s part of the importance of maintaining a working relationship with the most senior executive of the Company. [The complainant] subsequently resiled somewhat from this position, suggesting that his relationship with [A] would be unaffected should he return to the Company as he did not “bear grudges”.

A striking aspect of [the complainant]’s evidence was that he appeared to have no insight into the nature of his misconduct. He maintained that his conduct and the words used by him were reasonable and justified. He continued to adopt this position even when the inconsistency between his words and what had actually occurred was put to him.

Given his lack of insight into the nature of his misconduct, if [the complainant] was permitted to return to his position with the Company, it seems inevitable that further similar instances of misconduct would arise. This would create a significant potential exposure for the Company.

I am of the view that, taken as a whole, the misconduct which [the complainant] committed was gross in nature and that it entirely undermined the relationship of trust and confidence which was inherent in the relationship between him and the Company. It follows that the Company should no longer be required to retain [the complainant] in its employment.

I find that the Company was justified in dismissing [the complainant].   [the complainant]’s appeal is therefore dismissed.

In light of the Complainant's undisputed conduct there is no basis to say that the decision to dismiss was unreasonable. The statements made by the complainant were unjustified and intolerable. They have permanently damaged the relationship of trust and confidence between the complainant and his employer.

Applying the reasonable range of responses test the decision to dismiss the complainant was procedurally fair and substantively unimpeachable.

The respondent made extensive legal submissions.

On the Implied Duty of Trust and Confidence. Referring to Berber v Dunnes Stores Limited [2009] IESC 10 Mr Justice Finnegan held that:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

Accordingly, it is submitted that the complainant and the Respondent are, as a matter of law, under a mutual duty of trust and confidence.

On the ‘Band of Reasonable Responses Test’ the Respondent submits that it cannot be suggested that the sanction of dismissal, given the circumstances, lay outside a “band of reasonable responses” to the Complainant ’s conduct.

The Respondent notes that it is not the role of the Adjudication Officer to substitute his/her views for that of the employer but rather to establish whether the decision to dismiss lies within the “band of reasonable responses” available to an employer finding itself in the position of the Respondent.

It further relied on a decision of the Court of Appeal in Foley v Post Office [2000] ICR 1283. And also, in Anglian Home Improvements Limited v Kelly [2005] ICR 242 where the test was stated as being

“Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him."

Years later, the same test was confirmed by this court in Foley v Post Office [2000] ICR 1283.”

The application of the “band of reasonable responses” authorities in the context of unfair dismissal was confirmed by the decision of Noonan J. in the High Court case of Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229.   It has also been referred to with approval in the Supreme Court by O’Donnell J in Ruffley v Board of Management of St Anne’s School [2017] 2 IR at paragraph 41.

Finally, a further submission was made on the impact of procedural issues and the Respondent relies on the test identified by Laffoy J. in the High Court case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332that:

“the authorities … make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee’s employment and the circumstances surrounding the disciplinary action (per Barrington J. in Mooney v An Post [1998] 4 I.R. 288 at p. 298). The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result (per Hamilton C.J. in Gallagher v The Revenue Commissioners (No. 2) [1995] 1 I.R. 55 at p. 76)."

The Respondent firstly says that the requirements of fair procedures vary from case to case; there is no set formula that can be followed in each and every case.

Instead, general principles have been identified over time, by reference to specific issues that arise on a case by case basis. Where it is suggested that an individual has been deprived of fair procedures, the key criterion for consideration is whether or not the procedural deficit exposed the individual to the risk of an unfair hearing or an unfair result.  

In Shortt, the procedural deficit in issue was the fact that the employee had been deprived of the opportunity to cross-examine his accuser (in that case, his personal assistant). The Court noted that:

“… in this case there was a large measure of consistency between the basic facts as asserted by the personal assistant and the plaintiff’s account of what happened ... There was a conflict as to the demeanour of the plaintiff towards the personal assistant. The essential question is whether, given the refusal of the personal assistant to submit to being questioned at a disciplinary hearing by or on behalf of the plaintiff, the plaintiff was likely to be exposed to the risk of an unfair hearing or an unfair result.

The type of disciplinary process which was being implemented … does not lend itself to the application of the principles of natural justice in the manner in which they would be applied if the plaintiff had been entitled to a hearing by an impartial tribunal, which was not the case.

On the specific arguments advanced by the plaintiff in this case, in my view, the plaintiff has not established that he was not afforded fair procedures by reason of the fact that there was no opportunity for him or his representative to question the personal assistant. The factual dispute which the investigation identified, in my view, did not indicate that it was necessary in the interest of fairness to afford such opportunity.”

The Court concluded that:

“Taking an overview of the matter, I do not think that the process involved in the disciplinary procedure was unfair, nor was it implemented in an unfair manner.

Viewing the process as a whole, while not perfect, in my view it was not conducted in breach of the plaintiff’s rights.”

When assessing the omnibus allegation made by the complainant that his dismissal was, in some sense, procedurally unfair, it is important to recall that the essential issues which were the subject of the disciplinary proceedings were not in dispute.  

On the contrary, the complainant has at all times accepted that the offending communications were sent by him. Not alone this, he has at all times repeated his belief that they were appropriate communications, the correctness of which he reiterates.

The complainant has not identified any procedural deficit which substantially exposed him to the risk of an unfair hearing. On the contrary, it is submitted that the Respondent went to quite exceptional lengths to afford him a procedurally fair and reasonable process

In Berber v Dunnes Storesthe Supreme Court recognised the implication by law of a term requiring both parties to maintain a relationship or trust and confidence.

In this case the significance of trust and confidence is further emphasised by the Employee Handbook which specifies that any form of misconduct that irreparably breaches the trust and working relationship is deemed to be gross misconduct. Therefore, it is very clear that trust and confidence are essential elements in the employment relationship.

In Adesokan v Sainsbury's Supermarkets Ltd [2017] EWCA Civ 22, the English Court of Appeal had to consider the circumstances in which an employer might be entitled to dismiss an employee summarily for gross misconduct. In that case, a manager had been dismissed as a result of his failure to act when an email was circulated to members of his management team which suggested that they select their most enthusiastic colleagues to complete a compulsory engagement survey. The suggestion offended the philosophy of the engagement survey and risked compromising the results. The court of first instance had concluded that the complainant manager:

“would have been “under no illusion that [the engagement survey] must not be interfered with or influenced by management. Great emphasis is placed on the integrity and validity of the process to ensure that the feedback genuinely reflects the full range of staff views."

In finding that the decision to dismissal was fair, it concluded that:

“although the complainant was not dishonest and had not made a conscious decision not to take steps to eliminate the effects of [the] email, none the less his failure to take active steps to remedy the situation amounted to gross misconduct.”

The complainant manager appealed, arguing, inter alia, that the conduct in issue was not capable, as a matter of law, to amounting to gross misconduct where the neglect was not so egregious as to warrant the use of the term “gross” and did not cause the defendant harm.

The Court of Appeal considered whether or not the misconduct in issue could be categorised as “gross”, thereby warranting summary dismissal. It observed that:

“In my view a useful starting point in answering that question in the context of this case is the judgment of Lord Jauncey of Tullichettle, acting as the Visitor to Westminster Abbey, in Neary v Dean of Westminster [1999] IRLR 288, para 22:

“Whether misconduct justifies summary dismissal of a servant is a question of fact. In Clouston & Co. Ltd. v Corry [1906] AC 122, which concerned summary dismissal for drunkenness, Lord James of Hereford delivered the judgment of the Board said at p. 129: 'Now the sufficiency of the justification depended upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course, there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.' His Lordship went on to observe that 'the question of whether the misconduct proved establishes the right to dismiss the servant must depend upon facts - and is a question of fact.'"

The judge then considered and rejected a submission that gross misconduct was limited to cases of dishonesty or intentional wrongdoing:

"I am fortified in this view by the decision of the Court of Appeal in Sinclair v Neighbour [1967] 2 QB 279. Sellers LJ at p.287C said: 'But whether it is to be described as dishonest misconduct or not, I do not think matters. Views might differ. It was sufficient for the employer if he could, in all the circumstances, regard what the manager did as being something which was seriously inconsistent - incompatible - with his duty as the manager in the business in which he was engaged.' Davies LJ expressed views to similar effect at p.289 B: 'The judge ought to have gone on to consider whether even if falling short of dishonesty the manager's conduct was nevertheless conduct of such a grave and weighty character as to amount to a breach of the confidential relationship between master and servant such as would render the servant unfit for continuance in the master's employment and give the master the right to discharge him immediately."

Dismissing the complainant manager’s appeal, the Court of Appeal concluded that, in determining whether an employer is entitled to dismiss summarily for gross misconduct, the focus should be on the damage to the relationship between the parties. It found that, while dishonesty and other deliberate actions that poisoned the relationship would obviously fall into the gross misconduct category, so also could an act of gross negligence in an appropriate case.

In the current case it is manifest that the statements made by the complainant were profoundly damaging to the continuance of the employment relationship.

In order for an ongoing employment relationship to be viable it is essential that employees conduct themselves in accordance with basic standards of common courtesy, dignity and professional respect. Here, the complainant deviated from that basic standard by accusing his colleagues of serious professional misconduct without any reasonable justification for doing so.

In particular he made allegations against the Chief Executive Officer [A] which were inflammatory, intemperate and without reasonable justification.

Since then the complainant has unrepentantly repeated those allegations.

The statement submitted in support of his claim for unfair dismissal runs to one hundred and sixty seven pages of text.

It is an exceptionally prolix document, which makes a range of unwarranted and unsubstantiated allegations of professional wrongdoing against the Respondent, its employees, officers and even the independent decision maker. By way of example, the complainant makes the following allegation against the DM:

“Not even [the DM] with his explicit bias, prejudice and lack of independence could justify what are the scandalous actions of individuals within the company to set me up without any basis or foundation and to the duties as directors subject to Irish company law”.  

The complainant continues to unrepentantly impugn the integrity of the Respondent’s entire organisation, alleging malice, collusion and conspiracy – stating as follows:

“My employment was terminated which based on the, deliberate and premeditated actions of the company, it is an indication of the mentality and the strategy of individuals within the company, their advisors and agents to attack my; good name, character and professional reputation in such a; personal, deliberate, premeditated, devious, vindictive and malicious way while ignoring; facts, evidence, proof, due process, fair procedures and natural justice to assist them to set up a; sham, artificial and contrived disciplinary process which focuses on; collusion, complicity and conspiracy to terminate my employment with malice and intent.”

These charges are wholly unjustified and compound the misconduct for which the complainant was rightly dismissed.

In light of the complainant's undisputed conduct there is simply no basis upon which to contend that the decision to dismiss in this case was unreasonable. Applying the reasonable range of responses test the decision to dismiss the complainant was procedurally fair and substantively unimpeachable.

The complainant says that he was unfairly dismissed and there were no grounds to do so.

The company engaged in deliberate, and premeditated strategy and tactics based on historical, false, misleading and malicious complaints about his conduct which had no basis in fact.

He had raised regulatory and compliance issues and concerns, and this became the subject of retaliation by a number of senior managers.

In relation to the first stage disciplinary hearing the Operations Director (OD, as referred to above) ignored facts, evidence, proof, witnesses, fair procedures, due process and natural justice to set up a sham and contrived disciplinary process.

In particular, he was not told who made complaints against him or provided with documentation or copies of the accusations in writing.

He says that judgement was determined before all of the facts were considered and he was not given sufficient time to prepare for the disciplinary meetings

The respondent had no authority to appoint an external decision maker (DM) to hear the appeal and his process was a sham, artificial and contrived process.

He failed to review the facts, ignored tenets of natural justice, could not confirm his right to act, denied the complainant the opportunity to state his case and denied him legal representation. He was also denied correspondence he needed. The DM lacked independence, integrity and honesty in his report

He regarded the respondent as being a client of the DM and his actions in respect of a number of aspects of the appeal showed this. The dismissal was a deliberate and premediated sham with the assistance of external third parties.

This case was heard over the course of two sessions; it commenced on October 30th and resumed on December 17th, 2019.

The complainant has strongly criticised the decision to dismiss him in particular by reference to alleged deficits in the procedures, as well as the absence of substantial grounds for any disciplinary action.

These are probably the most common grounds on which a dismissal is challenged; that the process has not been carried out in accordance with the requirements of fair procedure.

The other two pillars on which the fairness of a dismissal will be challenged are that the alleged misconduct is insufficient to ground disciplinary action and arising from that that the sanction is too extreme.

As noted above the complainant faced four ‘charges’ in the internal disciplinary process.

The first of these arose from the content of an email to his CEO (sent on September 2nd, 2018).

The respondent placed this under the heading of conduct on the part of the complainant ‘likely to irreparably breach the trust, confidence and working relationship’ between the complainant and his employer’.

The fact that the email was sent is not in dispute.

The language used in the email was quite unusual for a communication between senior colleagues. The first instance disciplinary decision maker is noted in the report of the meeting as saying to the complainant that the language was ‘harsh and inflammatory’.

He concluded that the language was ‘completely inappropriate and disproportionate’ and went on to express his surprise at the complainant’s ‘lack of awareness as to the inflammatory nature of the email’.

The appeal decision maker agreed concluding that the complainant’s description of the CEO’s response as ‘inappropriate, reckless, unjust and professional’ or ‘malicious’ was wrong. Likewise, he found that the assertion that the CEO’s letter in response represented an act of discipline was without merit.

There was a related issue about whether certain colleagues should have been ‘copied’ in the response to it which both decision makers found to be unexceptionable.

The second ground related to comments allegedly made in a conversation the complainant had with a co-worker (KH). KH confirmed at the first hearing that they had been made while the complainant denied making any of the complaints saying they were ‘hearsay’.

In the course of the disciplinary meeting the decision maker reports that the complainant was aggressive towards KH.

There was a clear conflict in the evidence but on balance the decision maker preferred KH’s version and upheld the accusation.

At the internal appeal, it was held that this allegation was not substantiated, and the appeal decision maker attributed the difference between the parties to misunderstandings based on language and gave the complainant the benefit of the doubt. This ground of appeal was upheld.

The third allegation arose from comments made by the complainant arising from his probation interview on May 9th, 2018. These included comments on the propriety of certain commercial transactions.

Why these appear at all in comments on that interview, which was related to a review of his probation, was not explained by the complainant. But it was the content of the comments that gave further grounds for concern to the respondent.

The first decision maker says that the complainant avoided answering specific questions put to him. The complainant did roll back on one of the allegations.

On this point the decision maker concluded rather extraordinarily that the complainant ‘displayed what I would describe as a hatred for the company’ and that he had ‘intentionally set out to irreparably damage the company and the careers and reputations of a number of his colleagues’.

On appeal it was held that it was a serious matter that the complainant had used ‘misleading language in relation to a conversation regarding a potential conflict of interest’ given that he was a qualified solicitor and the company’s Compliance Officer.

The final conclusion on appeal was that the complainant;

‘used words in respect of the CEO which were inflammatory, intemperate and had no reasonable justification’ and that it was ‘surprising that he would use such ill-judged and inappropriate language in light of his legal training and compliance role’

and this ground of appeal was rejected.

I have reviewed all of the documents relating to the conduct of the disciplinary process both in the course of the hearing and subsequently.

There was a preliminary investigation, notice was given of the first disciplinary charges in advance and a hearing was held. The report of that meeting shows that it was conducted to a good standard.

This was followed by the sanctions meeting and again proper notice was given.

The appeal was conducted by a barrister experienced in employment law. Based on a reading of his report and his direct evidence to the hearing the criticism of his application of fair procedures is without merit. The appeal was conducted to a high standard of fairness.

His conclusions on the sanction are reasoned and measured and are quoted in full above (in the submission of the respondent), and I can find no fault with them.

I also reject the complainant’s contention that the disciplinary action was some form of retaliation for the exercise of his legitimate compliance responsibilities.

The four issues on which the disciplinary actions were grounded are clearly set out above; the original four ‘charges’ heard at first instance and the final two on appeal, with the reasoned decision on sanction, notably well set out at the appeal stage.

The complainant adopted an odd approach to the process, both before and during the WRC involvement. He seemed unable to focus on the actual issues before him, preferring to create a fog of confusion about detail, a great deal of it irrelevant.

His objections on fair procedure grounds were without any merit and generally specious. The procedures adopted were fair and proportionate to the issues in hand and I follow, as I am bound to do, the authority and principles set out above in Shortt v Royal Liver Assurance Ltd [2008] IEHC 332 and elsewhere.

The principle set out there relating to the proportionality of fair procedure requirements is critical. The complainant sought to impugn aspects of the internal (and as will be seen, of the WRC) processes based on a concept of fair procedure which has no practical application, in that the objections he raises in no way adversely affected his right to a fair process, specifically on the issues that gave rise to the disciplinary action.

This was well captured by the appeal decision maker when he said that;

‘In seeking to justify the statements, [the complainant] appeared preoccupied with alleged procedural shortcomings in the manner in which the allegation was made against him without “proof evidence and facts”, and with his alleged right to cross-examine [A].

Not only was this unhelpful to the complainant’s case but it emphasised his lack of focus and lack of insight into the substantive issues at stake.

One good, if small example was the objection to an external adjudicator hearing the appeal because it is not specifically provided for in the company procedures. Companies will regularly involve external investigators and adjudicators when the situation requires it and do not require specific authority in their internal procedures to do so.

I have also considered the respondent’s emphasis on the principle of ‘mutual trust and confidence’.

This is essential in the employment relationship. The respondent went no further in its reliance on Berber v Dunnes Stores on this point than to assert that the parties were under such a duty of trust, which is largely self-evident.

As a general proposition it must be approached with some care, however, as it requires more than a simple, subjective declaration (by an employer) of a loss of trust or confidence to justify the termination of a worker’s employment.

In this case, I am satisfied that the facts bring it into a realm where it can be said to be an issue of substance.

Taking account of the complainant’s role in the business, the nature of some of the comments which were made, and the language used to express them and the complainant’s apparent lack of awareness as to their significance; these all play a part when considering that mutual duty.

As noted above, but important to re-state in the context of this point, the first invitation (December 10th, 2018) to the complainant to attend a disciplinary meeting was in relation to allegations;

‘that he had conducted himself in a manner likely to irreparably breach the trust, confidence and working relationship between him and his employer’

which clearly places the issue of mutual trust and confidence at the heart of the disciplinary process and out the complainant well on notice of what he was facing. The record of the disciplinary meeting (some extracts follow) shows that he had little if any insight into the significance of this.

This arose from the email of September 2nd in which the complainant made a number of quite serious allegations against the Chief Executive of the company and expressed them in very strong terms. Almost all of them, for example were preceded with the phrase that the CEO ‘chose with premeditated intent’ to do the various actions referred to, whatever the reason for that.

For all the complainant’s criticism of the respondent’s application of fair procedure no such issue arose in respect of this ‘charge’ as not only did the complainant stand over the allegations, but the first decision maker noted that ‘he showed absolutely no remorse’.

He was surprised by the complainant’s ‘lack of awareness as to the inflammatory nature of his email and his refusal to acknowledge this or to express any remorse or regret for having sent it’.

And this was determinative in the first decision maker’s conclusions. He specifically articulated the reasons why he found the complainant’s actions ‘difficult to reconcile with a mutual relationship of trust and confidence’.

At the internal appeal the DM reached similar conclusions. He says;

In light of the foregoing, it seems to me inconceivable that the Company could continue to maintain a trusting working relationship with [the complainant].

When questioned as to his ongoing relationship with the Chief Executive Officer should he return to the Company, [the complainant] initially suggested that this issue was irrelevant, as he would not have to report directly to the Chief Executive Officer. This reflected an apparent misunderstanding on [the complainant’s] part of the importance of maintaining a working relationship with the most senior executive of the Company. [The complainant] subsequently resiled somewhat from this position, suggesting that his relationship with [A] would be unaffected should he return to the Company as he did not “bear grudges”.

A striking aspect of [the complainant’s] evidence was that he appeared to have no insight into the nature of his misconduct. He maintained that his conduct and the words used by him were reasonable and justified. He continued to adopt this position even when the inconsistency between his words and what had actually occurred was put to him.

The question is whether the respondent acted reasonably in reaching these conclusions about the breakdown in the mutual duty of trust and confidence. It is easy to see on the basis of the foregoing that it did.

The complainant initially submitted a document to the WRC of some one hundred and eighty-four pages, including the complaint form (one hundred and sixty seven pages without the complaint form).

It was poorly formatted, repetitive and dense with some very vitriolic language. It contained no summary of the case as would be normal. (The respondent described it as ‘an exceptionally prolix document’.)

It contained totally irrelevant material about a previous investigation unrelated to the disciplinary process.

(His submission to the internal appeal had been one hundred and forty-five pages).

Subsequent to the hearing the complainant made a complaint regarding the WRC hearings which require comment.

One was that (among other things) on the day of the first hearing the Adjudicator had not seen his submission.

This was true, due to a regrettable oversight. But absolutely nothing turned on this. No evidence was heard on that first day from the complainant.   By the time his submission came to be heard at the resumed hearing the document had been fully considered (albeit with difficulty).

The fact that no evidence was heard from him on that first hearing day also formed part of the complaint he made after the hearing to the effect that he ‘was not given an opportunity to be fully heard and to present any relevant evidence’.

But this was only because the respondent, on whom the burden of proof falls, and therefore always presents its case first in an unfair dismissal hearing, had not fully concluded the presentation of its case.

(Likewise, contrary to a suggestion that the first hearing ended because the adjudicator had a ‘personal’ appointment, in fact the hearing ended at the scheduled time of 3pm. Reference to a medical appointment was by way of explanation to the parties that the hearing could not continue beyond the scheduled finishing time on that day, as might otherwise have happened.)

In any event, adjudicators generally manage hearings without prior sight of parties’ submissions, as it is common that parties do not submit them in advance. Even when they are, any such material which might form part of the consideration of the case must be fully ventilated in the course of the hearing to enable a right of reply.

At the conclusion of the first hearing the complainant was invited to submit a shorter summary of his one hundred and sixty-seven page submission and he was given some general suggestions on the standard format and length of such submissions to allow for greater efficiency in the conduct of the resumed hearing.

Such submissions normally run between from under ten pages or so, and occasionally a bit longer.

In the event, and while it is not clear how the complainant could have misunderstood the general thrust of the request made to him by the Adjudicator, the summary requested resulted in a second document that ran to one hundred and forty-nine pages and was similar in style to the first one and quite unsuitable for an employment tribunal hearing.

By then, of course the first submission had been fully reviewed. On the basis of this it was clear that the second was so similar in content to the first and was neither the type of document requested, nor sufficiently new in content to require a detailed reading as this material would have to be opened in evidence at the hearing so that the respondent could address it.

The hearings ran to over four hours in total and I am satisfied that both parties were given a full opportunity to present their case and all relevant submissions and evidence and to test the evidence of the other party.

The complainant’s assertions that he was denied this opportunity are without foundation.

It is a matter for each party to present its case as it sees fit, but an Adjudicator must also exercise some judgement as to what is relevant and material in guiding him or her to a decision. The complainant demonstrated surprising inability (given that he is a solicitor) to focus on the key elements of the complaint, organise his case and present it in a digestible form.

By the time of the second hearing there were just over three hundred pages of submission from the complainant alone.

Returning to the substantive complaint of unfair dismissal, having considered all the evidence and submissions I find and conclude that the respondent had grounds to initiate the disciplinary process, that the process was conducted to a good standard of fairness from beginning to appeal stage and the decision to dismiss was within the range of reasonable sanctions.

Therefore, the respondent has met the burden of proof for a fair dismissal and the complaint fails.

For the reasons set out above I find Complaint CA-00029770-001 not to be well founded.

Unfair Dismissal.