Complainant

Respondent

Anonymised Parties

An Employee

A Hospitality Health Provider

Representatives

Regan O’Driscoll CC Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031137-001

25/09/2019

The Complainant commenced employment with the Respondent, a hospitality services provider, on 10 March 2010. At the time of her dismissal, on 30 August 2019, the Complainant held the role of Head of Digital & Data Science.

On 15 August 2019, the Complainant was called to a meeting, at 10am, with two of the Respondent’s Directors, at which she was advised that she was being suspended from her position with immediate effect, on full pay, pending investigation of correspondence she had sent to the General Manager the previous evening. Later that afternoon, the Complainant received a letter inviting her to an investigation meeting, to be held the following day, which would consider the incidents of 15 August 2019, which had led to her suspension and also incidents the previous Monday, 12 August 2019, relating to the alleged consumption of confectionery which contained a banned substance.

Following the conclusion of the investigation process, it was determined that the Complainant had a case to answer and she was invited to attend a Disciplinary Hearing, conducted by one of the Respondent’s Directors, on 28 August 2019. On 30 August 2019, the Complainant was advised that her employment with the Respondent was being terminated on the basis of gross misconduct.

The Complainant appealed this decision and attended an Appeal Hearing on 16 September 2019, which was conducted by another of the Respondent’s Directors. On 20 September 2019, the Complainant was informed that her appeal had been unsuccessful and the decision to terminate her contract was upheld.

On 25 September 2019, the Complainant submitted a complaint of unfair dismissal to the Workplace Relations Commission, under the Unfair Dismissals Act, 1977.That complaint is the subject of this adjudication.

Background to the complaint:

According to the Complainant’s complaint, when she attended work on Monday, 12 August 2019, she was extremely busy at work. The Complainant stated that she had hundreds of emails to go through that morning, as she had not been in a position, for the first time in months, to clear her outstanding emails over the weekend, as she would normally do. In addition, the Complainant stated that she was under pressure as she had to get a website live, do a client handover and prepare for meetings and client calls.

The Complainant went on to state that a colleague, (Mr A), who had returned to work on the morning in question, from a holiday abroad, brought some “Stroop waffles” into the office. According to the Complainant’s evidence, she declined when she was offered one of the waffles by her colleague.

According to the Complainant’s evidence, a short time later, comments were made in the office to the effect that the waffles were “more than a sweet treat”. However, the Complainant stated that another colleague (Mr B), who had eaten one of the waffles, said there was nothing in them and that he was fine. The Complainant stated in evidence that there was no further reference to the waffles prior to her logging out of the office at 4pm that afternoon. The Complainant explained that she left the office early as she was attending a fitting for bridesmaid’s dresses for her sister’s wedding.

The Complainant submitted that, at 5:01pm, while attending the dress fitting, she received a text from Mr A in which he stated that in another colleague (Ms C), who had eaten one of the waffles had reported that she was “feeling funny”. According to the Complainant, Mr A’s text also indicated that when he went to Ms C’s office to check if she was okay, she was not there.

According to the Complainant’s evidence, she replied to Mr A, by text, at 5:06pm, stating that she would message Ms C and check if she was okay. The Complainant stated that she sent a text to Ms C at 5:15pm and received an instant reply indicating that she was okay but that she had to leave work early. According to the Complainant’s evidence, her text exchange with Ms C was light-hearted in nature and typical of what she described as “out of office banter”. The Complainant also stated that she sent two further texts to Ms C at 5:37pm and 9:27pm that evening but received no reply.

The Complainant stated that she sent a further text to Ms C at 9:20am on the following morning, 13 August 2017, but, again, received no reply. According to the Complainant’s evidence, she was extremely busy throughout the remainder of the day and did not get to talk directly to Ms C other than through a group slack message. The Complainant stated further that she worked until 8pm that evening and when she got home she sent a further text to Ms C, but again received no reply.

According to the Complainant’s evidence, on the following day, Wednesday, 14 August 2017, she contacted her line manager, the General Manager (Ms D) to discuss an urgent work issue but the latter was too busy to speak and requested the Complainant to put the matter in an email. The Complainant further submitted that Ms C did attend the office on that day but was heading to the UK in the afternoon for a two-day business trip. According to the Complainant’s evidence, it was her intention to speak with Ms C in relation to the events of the previous Monday, when the latter returned from her UK trip on the Friday.

The Complainant stated that she left work later that morning to attend an off-site meeting. According to the Complainant, while she was at the meeting, she received a text from Mr A which informed her that he had just been dismissed. As she did not believe what Mr A said in his text, she took a screenshot of the message and sent it to Ms D seeking clarification.

According to the Complainant, when her meeting concluded at 4:25pm, she telephoned one of her direct reports to seek clarification in relation to Mr A’s situation. She further stated that, during this phone call she received a text from Mr A, which included a screenshot of an email which he had received from one of the Respondent’s Directors (Mr E), which stated as follows:

“Dear Mr A,

As discussed the Company has decided to exercise its right to terminate your employment based on the Termination Clause of your Employment Contract. We take this opportunity to wish you well in the future.

[redacted name] please pay Mr A’s notice period as Mr A has left today.”

The Complainant further submitted that in his covering text to her, stated that he had been informed, that the company are “heading in a different direction with [project P]”.

According to the Complainant’s evidence, she telephoned Ms D on her work phone (at 4:27pm) and on her personal phone (at 4:28pm), but the phone rang out on both occasions. The Complainant stated that she then telephoned Mr E, who informed her that he could not comment on anything other than to confirm that the board had a conference call and the decision was made to fire Mr A. The Complainant further submitted that Mr E advised her the only person who could give her more information was the CEO (Mr F).

The Complainant submitted that she became emotional during her phone conversation with Mr E and informed him that she did not know how she could keep the department afloat and continue to keep providing the services, as Mr A was the only person who was doing that particular work. According to the Complainant, she advised Mr E that, as she was under too much pressure already, she did not know how she was going to keep her head above water. In further submission, the Complainant stated that Mr E stated that he was aware of the situation but advised her to forget about it for the evening, as they would talk about it the following morning. According to the Complainant’s submission, following her phone conversation with Mr E, she tried to ring the CEO, but his phone rang out. The Complainant stated that she then sent a text to the CEO (at 4:38pm), requesting him to ring her.

The Complainant submitted that, as she received no response from the CEO, she then rang Ms D and had a conversation with her, during which she was quite emotional as she sought some insight into what was going on. According to the Complainant, she queried Ms D as to why she had not been informed if “Project P” was being taken in a different direction. The Complainant further submitted that Ms D did not say much other than that they would talk about it in the morning. The Complainant stated that she informed Ms D that she was on her way back to the office and wanted to find out what was going on because she was confused and upset.

According to the Complainant’s evidence, she sent a text to Mr E (at 5:05pm) requesting him to help her understand what was happening, as she was concerned about the impact on the team of Mr A’s departure, given that he was an integral part of the team and that there was “literally no one with his abilities out there”. The Complainant stated that she concluded her text by informing Mr E that she could not cope with any more pressure.

The Complainant stated that having returned to the office she put an instruction on the Slack channel, which specifically related to the work being carried out by Mr A, that all scheduled calls in that channel were to be cancelled with immediate effect.   The Complainant then provided evidence of her going to Ms D’s office where they discussed the matter. According to the Complainant’s submission, she advised Ms D that a huge amount had been done in the previous 9/12 months to build up this particular side of the business. The Complainant submitted that Ms D informed her that she had been instructed to advertise Mr A’s position.

According to the Complainant, at the conclusion of her discussions with Ms D, she requested to speak with the CEO but was advised that he was in a meeting. The Complainant stated that she requested Ms D to ask the CEO to come down to her when he got out of the meeting or, alternatively, to let her know when he’s out so that she could come down to discuss the matter with him. The Complainant further stated that both Ms D and the CEO left the office before she did but neither checked in with her, to see if she was okay or to provide any further clarification. According to the Complainant she left worth at 5:45pm feeling angry and confused. The Complainant submitted that she left her car in the car park at work and went directly to the pub.

According to the Complainant’s submission, she and Ms D would regularly “talk of the record” about all aspects of work, staff and management etc. Consequently, the Complainant submitted that, in the hope the Ms D might tell her more about what was going on, she sent her a text on her personal phone at 7:41pm, which included a picture of empty bottles of beer and the comment “Mightnt be in tomorrow. Soz”.

The Complainant submitted that, at 8:25pm, Mr A sent her a screenshot of an email which he had just received from Mr E, which stated “as discussed the Company is taking a different approach to the current provision of “Project P” services to its customers thus there would be no ongoing requirements as provided heretofore”. According to the Complainant’s submission, she found this information to be extremely confusing, as it contradicted Ms D’s confirmation to her, at their discussion earlier that evening, that she (Ms D) had been instructed to advertise Mr A’s position. The Complainant submitted that all of this led to her being confused, upset and wondering about her department’s future and her own future.

According to the Complainant’s evidence, she received a text from Ms D’s her personal phone, at 8:36pm, seeking to know if she (the Complainant) had spoken to the CEO. The Complainant submitted that, as she had not received any feedback or contact from anyone in management, she replied to Ms D at 8:51pm, stating that the CEO had ignored her calls and texts. According to the Complainant’s evidence, she then sent a series of texts to Ms D’s personal phone, over the next few minutes, stating, inter alia, that she would use her personal savings to set up a company with Mr A that would ruin the Respondent.

The Complainant further submitted that at 10pm she received a message, through the company Slack channel, from the Chief Commercial Officer (Ms G), who is based in the UK.   According to the Complainant’s submission, Ms G had just seen the Complainant’s earlier instruction to cancel all scheduled calls and was seeking clarification as to why this instruction had issued. The Complainant submitted that she replied immediately to Ms G advising her that as Mr A was no longer working with the company they could no longer fulfil this service at this time. According to the Complainant’s further submission, Ms G responded immediately indicating that she was unaware of the situation regarding Mr A, which, according to the Complainant, she (Ms G) described as “not good news”. The Complainant stated that the exchange concluded with Ms G indicating that she will try to get to the bottom of the matter first thing in the morning.

According to the Complainant’s submission, at 9am the following morning (Thursday,15 August 2019), she called a meeting of her team in the boardroom. She further stated that she had brought sausage rolls and scones, as she felt this would lift morale in the midst of all the confusion that existed within the team at that point in time. The Complainant stated that at 9:05am, her boss Ms D came into the room and advised her that she was not allowed to have a team meeting.

The Complainant stated that she informed Ms D that she was trying to keep the team afloat and need to have a way forward. According to the Complainant’s further submission, when she refused to cancel the meeting, Ms D ordered the staff to leave the boardroom. The Complainant stated that Ms D then left the boardroom, leaving the Complainant on her own. The Complainant submitted that she then sent a text to Ms G to see if she had found out anything about what was going on

According to the Complainant’s submission, she commenced a training call, at 9:40am, with one of the Respondent’s directors and a member of the Business Development team. The Complainant stated that at 10am Mr E requested her to end the call and join him in the boardroom. According to the Complainant’s evidence, when she entered the boardroom, another director Mr H, was also present. The Complainant stated in evidence that Mr E then proceeded to read out a letter of suspension, referencing the threatening of the company and the disruption of services as the reason for this suspension. According to the Complainant, the suspension, with pay, took immediate effect pending investigation. The Complainant further stated that both Mr E and Mr H, both indicated their personal regret at what was happening but indicated that the CEO (Mr F) had instructed them to carry out the suspension.

The Complainant stated that, at 10:50am, Mr E forwarded a text which he had received from the CEO (Mr F), advising that she (the Complainant) was expected to be available on email to management, in the week ahead, to answer any questions they may have. The Complainant further stated that at 12:55pm, she received another text from Mr E advising that, as Mr F was now handling all aspects of her department, she was no longer required to be available online but had to conform to the requirements in the letter of suspension by not contacting employees or customers. The text also requested the return of the company laptop to Ms D.

According to the Complainant’s further the submission, she received an email from Mr E, at 2:31pm, which had, as an attachment, a letter from a Ms J, a Human Resources Manager at one of the Respondent’s associate organisations. The letter from Ms J advised that she had been appointed to investigate the incidents of Monday, 12 August 2019, with regard to the Stroop Waffles and two incidents on Wednesday, 15 August 2019 relating to (a) the Complainant’s contact with the General Manager (Ms D) advising that she (the Complainant) will set up a company with another employee to “ruin” the Respondent and (b) the Complainant’s issuing of an unauthorised instruction to the UK division seeking the immediate cancellation of business activities with a new client. The letter also indicated that a meeting had been set up for the following day, 16 August 2019, to progress the investigation.

The Complainant submitted that following the investigation meeting on 16 August 2019, she received a letter from Mr E, on 26 August 2019, advising that as it appeared she had a case to answer she was being invited to attend a disciplinary meeting on 28 August 2019, at 2:15pm, which would be conducted by Mr H. According to the Complainant’s evidence, she attended the Disciplinary Hearing on 28 August with Mr H. The Complainant further submitted that she received a letter from Mr H, at 3:17pm, that afternoon, advising that her conduct was considered as gross misconduct on her part and that he would revert in writing, in due course, having considered the appropriate sanction.

According to the Complainant’s submission, she received a further letter from Mr H, on 30 August 2019, which advised that the company was terminating her employment. The Complainant further submitted that she availed of the option of appealing the termination decision and duly submitted her grounds of appeal to the Appeals Officer, who was another of the Respondent’s Directors (Mr K).

The Complainant submitted that the Appeal Hearing took place on 16 September 2019 and that the outcome, that the decision to terminate her employment was being upheld, issued to her on 20 September 2019.

Substantive Submission:

In addition to providing the above background to her dismissal, the Complainant made the following submission in relation to some of the key points of her complaint:

a)       The investigation conducted into the events of 12 and 15 August 2019.

The Complainant raised a number of questions in relation to the investigation which was carried out by Ms G. According to the Complainant’s submission, for an investigation to have been conducted, there would have had to be an allegation, in the first instance. She further stated that whether that allegation was against her or anybody else, it should have been documented in advance and she should have received a written copy of the allegation.

According to the Complainant’s submission, as part of the investigation, she gave a statement and outlined what she knew, following which it was decided to bring the case of gross misconduct against her. Accordingly, the Complainant submitted that there would need to be something to investigate in the first place and, as a result, she questioned how an allegation can be made after an investigation has concluded.

b)      The termination of a colleagues contract.

According to the Complainant’s submission, her colleague, Mr A, who had provided the Stroop Waffle, with the alleged banned substance in it, was not fired for gross misconduct but instead kept his name intact and was told that the reason for the termination of his contract was because the Respondent was taking that element of their business in a different direction.

The Complainant further submitted that, since her departure, there have been three redundancies within the company, as the Respondent merged the section of the business, in which she/Mr A worked, with another department.

According to the Complainant’s submission, based on the information that has come to light, since her departure,   of other people being let go, she feels that she was unfairly dismissed, in what she described as a “tactical move” given the cost to the company of making her redundant.

c)       Training

According to the Complainant submission, at no time in her near 10 years working for the Respondent, did she ever receive guidance, advice or external training on how to manage employees. She further submitted that a company cannot operate on the assumption that all managers will think the same or react the same to situations.

In this regard, the Complainant submitted that, in hindsight she could have acted differently, but it was still unlikely that she would have reacted in the way that the Directors required, as she could never exactly react as they might want without direct instruction. Secondly, the Complainant submitted that she could not see how her way of dealing with the situation, which was to have it investigated as soon as the opportunity arose, could be regarded as an act of gross misconduct or of not having employees best interests at heart.

According to the Complainant’s submission, when she received the message, that her colleague had left work as a result of eating the waffle, she was off-duty and was not very focussed on what was happening at work. The Complainant stated that, consequently, she did not fully grasp the severity of the situation until later. According to the Complainant, the allegations being made against Mr A were very serious but, conveniently, he was dismissed for a completely different reason before any investigation could take place into the incident. The Complainant also pointed out that another employee, who ate one of the waffles, stated that he was feeling absolutely fine.

The Complainant also submitted that, had she been in a position to investigate the matter when Ms C returned to work from the UK, she (the Complainant) would have had to tread more carefully considering both Mr A and Ms C would have been still within the company. Consequently, the Complainant stated that the texts, which she sent to Ms C on the evening of 12 August 2019, should be considered in that context.

d)      Texts to the General Manager on 15 August 2019

With regard to the texts which she sent to the General Manager (Ms D) on the evening of 14 August 2019, the Complainant submitted that she takes full responsibility for these, despite the fact that her reactions were as a result of the influence of alcohol. In addition, the Complainant submitted that she truly regrets having sent these texts.

According to the Complainant’s submission, given how passionate she is about the company she worked for, she felt lost on the evening in question. The Complainant further submitted that, as a consequence, she took it out on someone who usually helped her find answers (i.e. Ms D) because she often felt as lost as the Complainant in such situations. The Complainant reiterated that she was foolish and under the influence when she made the statement that she would set up a company, along with Mr A.

The Complainant submitted that she could not understand the Respondent’s handling of the situation that developed on the evening of 14 August 2019. According to the Complainant’s submission the Respondent should have asked her if she was aware of what was happening. The Complainant further submitted that her reaction to Mr A’s dismissal was not related in any way to the allegations regarding the Stroop Waffles. In support of this, the Complainant submitted that there was nothing to connect the two   scenarios as Mr A had first told her, via text, that Mr E had advised him that they were taking the business in a different direction. The Complainant stated that this message was confirmed when Mr A centre screenshot of Mr E’s email to this effect. According to the Complainant, her “head was in a mess” because she had no clue what was going on around her. However, the Complainant submitted that, at no point, did she think there was a connection between Mr A’s dismissal and the incidents relating to the Stroop Waffles.

The Complainant, in her submission, also queried the Respondent’s duty of care to her. According to the Complainant she was hugely distressed by everything that happened on the evening of 14 August and had asked for some guidance, for someone to let her know what was going on. The Complainant submitted that, if at any point, anyone had called her aside and asked did she have a plan, they would have discovered that she was applying a duty of care to Ms C, by not stressing her further before her work trip to the UK.

e)      Drugs

According to the Complainant submission, as a result of a personal experience she had somebody she knew who had an epileptic fit as a result of smoking weed, she was completely anti-drugs.

The Complainant stated that, on the morning of 12 August, she had advised Mr A to remove the waffles, if they contained a contraband substance. However, the Complainant submitted that she was advised by Mr B, who had consumed one of the waffles, that there was nothing in them. The Complainant further submitted that she worked in the same office as Mr B for the remainder of the day and he had no reaction up to 4:00pm, at which point she left the office.

According to the Complainant’s submission, all of the staff involved in the waffles incident were adults and she could not control their decisions in this regard. However, the Complainant further submitted that this does not mean what happened was right. According to the Complainant, if she was aware of a protocol to follow then she would have done so 100%. However, the Complainant submitted that she was not adequately trained or advised on how to deal with this particular sort of situation.

Conclusion:

In conclusion, the Complainant stated that she had put her heart into the company and claimed that she would not have wasted that 10 years of work just to end it like this, if she thought she was doing something wrong.

The Complainant submitted that, as she had succeeded in getting alternative employment, which commenced in January 2020, she was seeking compensation, based on being out of work for 20 weeks, as her preferred form of redress for what she considered to be her unfair dismissal.

Background:

It was submitted that the Respondent is a hospitality service provider, who serves clients throughout Ireland and the UK.

According to the submissions made on behalf of the Respondent, the Complainant commenced employment on 10 March 2010. It was further submitted that at the time of termination, the Complainant was employed in the role of Head of Digital & Data Science. According to the Respondent, this is a responsible role, in which the Complainant had a team of 9 people reporting to her.

The Respondent submitted a detailed chronology of events commencing with the incident on 12 August 2019 and culminating, on 20 September 2019, with the issuing of the outcome of the Complainant’s appeal of the decision to terminate a contract of employment, in which that decision was upheld.

Legal Submissions:

The legal submissions made on behalf of the Respondent referred to Section 6, subsections (1), (4) and (7)and Section 7 (2)(f) of the Unfair Dismissal Act 1977- 2015.

In support of the submissions in this regard, the Respondent cited the following cases: Connacht Gold v Connor Rafter [UD 48/2014], Hennessy v Read and Write Shop [UD192/1978], Patrick O’Malley v An Post [UD 1284/2014], AIB v Brian Purcell all[2012 23 ELR 189] and Fernando Ribera v Danceglen Limited [UD 17/182].

It was submitted on behalf of the Respondent that they had substantial grounds to terminate the Complainant’s contract in this case. According to the Respondent, the Complainant signed a written contract of employment, which confirmed the details of the Company’s Disciplinary Rules and Procedures, as well as the Health and Safety and Welfare policies were contained in the Employee Handbook, with which the Complainant was required to comply.

According to the Respondent’s submission, the Complainant was aware that illegal drugs were not tolerated in the workplace and that she should not have tolerated a situation in which this might be the case. However, the Respondent submitted that, despite this, when it came to the Complainant’s attention on 12 August 2019 that illegal drugs had been provided to one of the people who reported to her, she took no steps to report to her employer or to investigate it further.

It was submitted that the Respondent was even more concerned that the Complainant repeatedly exhorted the alleged victim not to tell anyone about the incident. In addition, it was submitted on behalf of the Respondent that the fact the Complainant’s comments, in this regard, were made while she was absent from the workplace cannot be seen as an excuse.

According to the Respondent’s submission, two days after the incidents of 12 August 2019, the Complainant made statements indicating an intention to damage her employer’s business. It was submitted by the Respondent that, while it does appear that the Complainant was under the influence of alcohol at the time, during the investigation meeting of 16 August, she commented that “if I didn’t want to set up my own company with [ Mr A], who are they to stop me”. According to the Respondent’s submission, these comments essentially represented the Complainant repeating the sentiment.

According to the Respondent submission, they are entitled to treat this matter seriously, as they did, and that there are ample grounds on which to make the decision to dismiss the Complainant. It was further submitted that the Respondent afforded the Complainant of the benefit of an investigation, disciplinary hearing and full appeal, during which the Complainant was able to make many points in her defence in accordance with their procedures.

The Respondent submitted that the case law in this area provides that the Adjudication Officer is not required to decide in the same circumstances or substitute his/her own view for the employer’s view. According to their submission, the appropriate approach is to ask whether it was reasonably open to the employer to make the decision it did, which the Respondent submitted they were in the within case, and, furthermore, that is was within the band of reasonable responses to the extent that they had substantive grounds to dismiss the Complainant.

According to the Respondent’s submission, the decision to dismiss was a reasonable one and the dismissal was fair. It was further submitted that the issues were such that they went to the heart of the relationship of trust and confidence and it was reasonable to conclude that the Complainant’s conduct amounted to gross misconduct and there was no trust and confidence that will permit the employment relationship to continue.

Consequently, the Respondent submitted that the Complainant’s claim of unfair dismissal should be dismissed. However, without prejudice to the Respondent’s submission that the decision in this case was not unfair, it was respectfully submitted that the Adjudicator ought to have regard for the conduct of the Complainant and the manner in which she contributed to her own dismissal.

The documentary evidence adduced in this case, shows that the Complainant was dismissed on the basis that her actions, which occurred separately on 12 August 2019 and 14 August 2019, amounted to gross misconduct of a nature that left the Respondent with no alternative but to terminate her employment with immediate effect.

Therefore, on the basis of the above, the assessment of the Complainant's complaint of unfair dismissal must be considered against the background of the events which took place on 12 August 2019 and 14 August 2019.

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…..(b) the conduct of the employee….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are 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 for justifying the dismissal.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances.

It is not the function of the Adjudicator to establish the guilt or innocence of the employee. Rather, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

With regard to the case in hand, the dismissal letter, which issued to the Complainant on 30 August 2019, from the Respondent’s Director (Mr H), who conducted the Disciplinary Hearing, concluded that the Complainant’s actions represented gross misconduct and that he had no alternative but to terminate her employment. Mr H identified the actions in question as being (a) “most especially….your knowledge and condoning correspondence with regard to an alleged banned substance being consumed by an Employee in your department and your duty of care to the Employee and duty of care to the Company” and (b) “threatening correspondence against the Company sent to the General Manager”. The evidence adduced identifies the first set of actions as having occurred on 12 August 2019, while the second took place on 14 August 2019.

The Complainant appealed Mr H’s decision and the appeal was heard by another of the Respondent’s Directors, Mr K. In his appeal decision, which issued on 5 September 2019, Mr K stated as follows: “the Company is not basing its evidence on the substance being a banned substance or not. The Company has based its views on the fact that you were aware, whether inside working hours or not, that an employee, who works under you within your department had consumed something that ultimately led to leaving the workplace feeling unwell….”.

Mr K further stated in his conclusions that, in his view, “the Company in reaching a decision of Termination of Employment did so on the basis that you did condone the taking of alleged substance and as Department Head did not provide a duty of care to the employee and you did not provide a duty of care to the Company by reporting the matter immediately to the General Manager. Therefore, the only decision I can reach here based on the details of your knowledge pertaining to a member of your department staff consuming alleged banned substance is to uphold the decision to terminate your employment”.

Based on the above documentation, there would appear to be some contradiction or, at best, a certain lack of clarity with regard to the actual reasons for the Complainant’s dismissal. However, having carefully reviewed all the evidence adduced, I am satisfied that the basis for the Complainant’s dismissal was, as set out in the concluding paragraphs of Mr K’s decision of 5 September 2019, that the Complainant was aware of and condoned the taking of an alleged substance by a member of her team and her failure to provide a duty of care to either the employee or to the Company.

However, notwithstanding the differences in emphasis between the outcomes of the Disciplinary and Appeal processes, I am satisfied that, in order to conduct a comprehensive assessment of the unfair dismissal claim, it is prudent to consider the events of both 12 and 14 August and the role they played in the Complainant’s dismissal.

Events of 12 August 2019:

These events relate to the consumption of an alleged substance. While I note Mr K’s distinction, as set out above, in relation to the “banned” nature of the product in question, I would be of the view that, if the Respondent based their decision to dismiss the Complainant on her knowledge of and condoning of “the taking of an alleged substance”, then there is a requirement on the Respondent to conduct some sort of initial investigation to support this allegation. However, I can find no evidence to suggest that the Respondent carried out any investigation of the confectionery in question in order to establish whether or not it contained a “substance”, banned or otherwise, which might have contributed to an employee (Ms C), who was alleged to have consumed some of the product, becoming unwell and having to leave work.

The evidence presented suggests that the confectionery in question was brought into the workplace by a team member (Mr A), who was returning from a period of leave that day. The evidence further suggests that one member of staff (Mr B) consumed one of the waffles early that morning and suffered no ill effects either on consumption or throughout the remainder of the day. In fact, the evidence suggests that Mr B informed the Complainant that there was nothing wrong with the confectionery.

Based on the evidence adduced, it appears that none of the confectionery in question remained at the end of the day nor was any acquired by the Respondent for testing or further investigation. According to direct evidence from Mr E, the Respondent’s Director who was dealing with the events of 12 August 19 and their follow-on, the Respondent received legal advice to the effect that it would be very difficult to prove that there was a “banned substance” involved or that it had been consumed in the workplace.

In addition, there is no evidence to suggest that any enquiry or investigation took place with regard to the circumstances in which Ms C was provided with and/or consumed the allegedly suspicious confectionery.

It is also worth noting, in this regard, that the termination of the employment of Mr A, the individual who brought the confectionery into the workplace, took place two days after the events of 12 August 2019, in circumstances where no reference was made to the issue of the “banned substance”. In fact, Mr E confirmed in his direct evidence that Mr A was not interviewed in relation to the suspect confectionery.

The evidence submitted by the Respondent suggests that Mr A had his contract terminated on the basis that the work he carried out was no longer required, as the company was going in a different direction with that aspect of their business. However, it would appear that this decision was arrived at rather hastily and in a context where a significant number of the Respondent’s senior management team were unaware that the decision had been made or was being announced on that day. The credibility of the Respondent’s submission in this regard is further undermined by the Complainant’s direct evidence that, when she eventually got to speak with her boss, the General Manager (Ms D), at a later stage in the afternoon of 14 August 2019, she was informed by Ms D that Mr A’s position was to be filled and she had been instructed to advertise the role.

Having carefully reviewed the evidence adduced in this regard, I find there to be a degree of credibility in the Complainant’s contention that it was unfair that she was dismissed, in a context where the person who brought the alleged substance into the workplace and offered it to colleagues was not even questioned about it and that the termination of his employment, two days later had nothing to do with the substance.

The Respondent’s submission placed significant emphasis on the series of text communications which issued between the Complainant and both Mr A and Ms C on the evening of Monday, 12 August 2017. The Respondent made specific reference to the Complainant’s comment to Ms C to “Enjoy the buzz lol” and presented it as evidence to suggest that she (the Complainant) was aware that the confectionery contained a banned substance.  

Based on the evidence submitted, it would appear that there may have been some comment, by way of banter, as to whether the confectionery contained additional ingredients, when Mr A offered them around the office on the morning question. However, it would appear that the matter rested with the comments of Mr B, who ate some of the confectionery and confirmed that there was no issue with it.

Clearly, these exchanges suggest that there had been some indication or suggestion that the confectionery in question may have contained an ingredient that might not normally be present in such product. According to the Complainant’s direct evidence, she informed Mr A that if there was anything unusual about the product that he should get rid of it. The evidence shows that there was nothing further about the confectionery and, in that context, I find it quite reasonable that the Complainant thought no more about it while she was in the workplace.

The next the Complainant heard about the matter was when she received a text from Mr A, after she had left work. The evidence presented in this regard shows that Mr A contacted the Complainant at 17:06 advising that Ms C was no longer in the office and he was unable to establish how she was feeling. The evidence further shows that the Complainant undertook to contact Ms C, which she did at 17:15. Over the following 22 minutes, a total of 15 very short messages passed between the Complainant and Ms C.

Having carefully reviewed the content of the text exchange between the Complainant and Ms C, I am not convinced that it properly establishes any facts in relation to the waffles and/or their alleged ingredients. In particular, I am not satisfied that the text exchange provides sufficient evidence on which to conclude that the Complainant had full knowledge of and was condoning inappropriate behaviour.

In addition, I am of the view that the context and location in which the Complainant was while engaging in this exchange should also be taken into consideration when attaching significance to her actions. According to the Complainant’s direct evidence, in this regard, she was attending a bridesmaids dress fitting when she received the text from Mr A and, as a result, was not fully focused on what was going on.

Consequently, having carefully considered all aspects of this matter, I am not satisfied that the text exchange between the Complainant and Mr A/Ms B provides a reasonable basis on which to base a decision to terminate an employee’s contract of employment.

The second element of the events of 12 August 2019 which influenced the Respondent’s decision to dismiss the Complainant was their contention that she did not provide a duty of care to Ms C and to the Company.

As has already been referred to above, the Complainant did make contact with Ms C on the Monday evening and based on their text exchange at that time, the Complainant, not unreasonably, concluded that there was no immediate or urgent health issue involved.   In addition, the evidence shows that, while, Ms C did not attend work the following day, (Tuesday), she was well enough to attend work and, in particular, participate in a two day business trip to the UK on the Wednesday/Thursday of that week.

The Respondent’s contention is that the Complainant failed in her duty of care to both the employee and the Company. In his direct evidence, Mr E stated that the Complainant should have escalated the matter to senior management. In response, the Complainant stated that she had intended to raise the matter with her direct boss, Ms D, on the day following the incident (i.e.Tuesday,13 August 2019) but due to the latter’s unavailability, due to workload, she did not have the opportunity to do so.

While it is noted that the Complainant’s position, as set out above, is somewhat at odds with that provided to Ms J, during the original investigation into the incidents, the reality of the situation, based on the evidence adduced, is that the matter was brought to Ms D’s attention on the evening of 12 August 2019, by the individual who drove Ms C home. The evidence additionally suggests that Mr E, who also became aware of the situation, at this early stage, immediately sought advice from and was in consultation with the Respondent’s legal adviser over the next number of days.

Having carefully considered all of the circumstances, as set out above, I find that the Respondent’s conclusions in relation to the Complainant’s failure to provide a duty of care, particularly in the context where the General Manager was aware of Ms C’s early departure from work, on the evening in question, are flawed. Consequently, taking all of the above into consideration, I do not consider that those conclusions provide a reasonable or safe basis on which to terminate the Complainant’s employment.

Events of 14 August 2019:

At the outset, it is noted that the Appeals Officer, Mr K, appears to have made a distinction in terms of severity/gravity between the incidents of 12 and 14 August 2019. In his findings, Mr K, stated that the threatening correspondence issued on 14 August 2019 “on their own would not have been reason to reach a termination decision, however they may be considered contributory to the decision”.  

It could also be interpreted from Mr H’s findings, following the Disciplinary Hearing, that he too placed greater significance on the events of 12 August, then those of 14 August when reaching his decision of gross misconduct. This is deduced from his comment “but most especially in relation to” the events surrounding the “banned substance”, when detailing the reasons for his dismissal decision.

Notwithstanding the above views with regard to the seriousness or significance of the events of 14 August 2019, I am satisfied that they played a role in the Respondent’s consideration of the matter and were, according to Mr K, “considered contributory to the decision”.

Having carefully considered all the evidence adduced in relation to the incidents of 14 August 2019, I find that serious consideration must be given to the context in which those incidents took place, as I believe it had a significant bearing on the Complainant’s behaviour.

The evidence shows that the Complainant was informed by Mr A that his contract of employment had been terminated on the basis that he was no longer required in the company as they were going in a different direction with the aspect of the business which he was working on. This information was provided to the Complainant in the mid-afternoon while she was attending an off-site meeting.

From a review of the evidence provided and, in particular, from the Complainant’s direct evidence, it is clear that she was very concerned at the impending impact of Mr A’s departure on her team and their ability to continue to service their clients. Consequently, over the following two hours, the Complainant made frequent efforts to contact members of senior management with a view to ascertaining some clarity in relation to Mr A’s departure from the organisation.

At approximately 16:30, the Complainant succeeded in speaking with one of the Directors (Mr E), who informed her that he could not comment on anything other than to confirm that the board had a conference call, during which the decision to terminate Mr A’s contract of employment was made. According to the Complainant, the only person who could provide her with more information at that point was the CEO (Mr F).

Following her conversation with Mr E, the Complainant returned to her office from the off-site meeting.   On her return, she placed a notice on the company’s messaging service, cancelling calls, which had been set up, for the following morning, to clients Mr A had been working with and whose presence would be required if the calls were to go ahead. Having carefully considered the evidence adduced in relation to the Complainant’s cancelling of these calls, I am satisfied that her actions in this regard were not unreasonable in the circumstances.

Given that Mr A’s departure had taken place with instant effect and without any advance notice or explanation to her, as his boss, the Complainant had genuine concerns about the ability to proceed with the calls in such circumstances. Consequently, I am satisfied that, in cancelling the calls, the Complainant was making a business decision, as Head of Department, based on her assessment of the situation, as she saw it. Consequently, irrespective of the Respondent’s retrospective view as to the appropriateness or otherwise of that decision, it was, in my view, unreasonable, in all the circumstances, to view the Complainant’s action in this regard as amounting to gross misconduct or as a potential contributing factor in the termination of her employment.

Following the cancelling of the calls for the following day, the Complainant met with Ms D, who informed her that she had been instructed to advertise Mr A’s vacant position.   Clearly, in the context of the information that Mr A had earlier provided to the Complainant, with regard to the reasons he was given for the termination of his employment, Ms D’s information that his position was now being advertised only served to heighten the Complainant’s confusion and concerns, both in relation to her team’s ability to continue to service clients and, indeed, her own future.

According to the evidence, the Complainant concluded her discussions with Ms D by asking her to request the CEO to contact her in relation to the evolving situation. However, the Complainant stated that both Ms D and the CEO left the building, while she was still there, but neither spoke with her.

Having carefully reviewed all of the evidence, I am fully satisfied that, by the time she left work (at 5:45pm), the Complainant was extremely confused, concerned and upset. I am further satisfied that by the time the Complainant left work on that evening both Ms D and Mr E were aware of the fully aware of her level of concern and upset.

The evidence shows that the Complainant went directly to the pub, where, over the next number of hours she consumed a considerable amount of alcohol. The evidence also shows that while she was in the pub, the Complainant sent a number of texts to Ms D’s personal phone, in which she stated, inter alia, that: (a) “[the Respondent] has failed again, (b) “I will set something up with [Mr A] and f*****g ruin ye” and (c) “I have no loyalty to ye after that. Currently in talks with others and also looked at investing my mortgage savings”.

The evidence shows that, when these comments were brought to their attention by Ms D, senior management took a dim view of same and decided, the following morning, to suspend the Complainant pending completion of an investigation into the matter. The evidence also shows that the investigation led to a Disciplinary Hearing, which was conducted by Mr H, who concluded that this “threatening correspondence” represented gross misconduct, which in conjunction with the Complainant’s actions on 12 August 2019 warranted dismissal.

As already detailed earlier, Mr K did not consider the text sent by the Complainant to Ms D on 14 August 2019 to have been so serious as to warrant dismissal. This view is further underpinned by the fact that Mr K’s final decision in upholding the Complainant’s dismissal refers only to the incidents of 12 August 2019. However, it is unclear what, if any, weight Mr K applied to the offending correspondence of 14 August 2019 in reaching his overall conclusion. Notwithstanding this, I am satisfied that there are a number of issues which, in my view, should be considered as mitigating factors when it comes to the assessment of the Complainant’s behaviour on the night in question.

Firstly, it is very clear from the evidence that the Complainant was confused, concerned and quite upset at the developments which had unfolded earlier that afternoon, commencing with Mr A’s unexpected and immediate dismissal. The situation was further complicated by the failure of anyone in management to provide the Complainant with any clarification or reassurance in the circumstances. In addition, Ms D’s provision of information, which was in direct conflict with that which had been provided, in writing, to Mr A by Mr E, when he was terminating the latter’s contract, only served to increase the Complainant’s level of distress at that stage.

Consequently, while not condoning the Complainant’s actions as the evening progressed, it is not difficult to see how the evolving circumstances might have left her in a state of confusion and distress, which, when combined with the influence of alcohol, might provide somewhat of an explanation for her actions or, at minimum, be considered in the context of mitigation for her behaviour.

The second factor which I believe may have influenced the Complainant’s actions was her understanding of her relationship with Ms D. According to her evidence, the Complainant considered her relationship with Ms D to be close and personal in nature, albeit grounded in the work/professional context. The Complainant provided evidence to support her contention that she and Ms D would regularly have “rants” about more senior management, work pressures and business decisions, etc. It is the Complainant’s contention that the comments contained in her texts to Ms D on the night of 14 August 2019, which she (the Complainant) stated she never intended following through on in any event, were sent in the context of those previous “rants” which she and Ms D regularly engaged in.

It was disappointing, given her involvement in so many central aspects of this case, that Ms D was not present the Hearing, to give evidence. However, notwithstanding that, I found that the Complainant’s evidence in relation to this aspect of her claim to be genuine and credible. Based on that evidence, I am satisfied that the Complainant’s comments were made in the context of a colleague to colleague “rant” rather than as any serious threat to the company, as interpreted by the Respondent.

Consequently, taking all of the above into consideration I find there to be significant grounds of mitigation, which when taken into consideration, would dilute the seriousness of the actions taken on the night in question and, as a consequence, reduce their impact as a contributory factor in the decision to dismiss.

Process/Procedure:

The final aspect of the assessment of the Complainant’s claim for unfair dismissal relates to the processes and procedures applied by the Respondent in this case.

The first concern I have, in this regard, relates to the events surrounding the Complainant being placed on suspension on 15 August 2019. Having been called to a meeting at 10:00 that morning, attended by both Mr E and Mr H, the Complainant was provided with a letter, signed on behalf of the CEO (Mr F), dated 15 August, which informed her that she was being suspended with immediate effect, on full pay, pending investigation of: “correspondence from you to the General Manager” and “the authorised instruction to our UK division seeking the immediate cancellation of business activities with a new client”.

It is clear from this correspondence that the Complainant was being suspended, pending investigation of the incidents that occurred on the evening/night of 14 August 2019. It is noted that the suspension letter contains no reference to the events of the evening of 12 August 2019, which, as already detailed above, the Respondent considered to be a more serious and significant act of gross misconduct.

The evidence shows that at 14:30 that afternoon, the Complainant received an email from Mr E, enclosing a letter from the Human Resources Manager (Ms J) who had been appointed to conduct the investigation of the incidents involving the Complainant. This correspondence commences with Ms J advising that she has been appointed to investigate an incident on 12 August 2019 in relation to the consumption of biscuits which: “allegedly contained a banned substance”. The correspondence further states that the alleged incidents of “Wednesday 15 August 2019”, relating to contact with the General Manager and the issuing of an unauthorised instruction to cancel business activities, would also be investigated as part of this investigation

The first issue with the letter from Ms J is that it is dated 14 August 2019. Having carefully reviewed all of the evidence, in this regard, I accept that the issues in relation to the incorrect dates could possibly be as a result of poor attention to detail in the crafting of the correspondence, which of itself must be considered as unacceptable where the matter at issue is as serious as suspension from duty, with the potential of dismissal to follow.

However, when considered in conjunction with the Respondent’s failure to reference the incidents of 12 August 2019 in the letter of suspension which was issued to the Complainant some hours earlier, the issue with this correspondence only serves to raise further questions about the propriety and bona fides of the Respondent in its general handling of the investigation of the Complainant’s actions.

The second concern I have with regard to process/procedure relates to the presence of Mr H at the meeting on 15 August when the Complainant was placed on suspension and his subsequent role in conducting the Disciplinary Hearing, which followed on from Ms J’s investigation. According to the Complainant’s evidence, Mr H, in common with Mr E, confirmed, at the meeting on 15 August, that he personally regretted having to place her on suspension, but they had to do so based on the instruction of the CEO.

Based on this evidence, I am of the view that Mr H’s comments to the Complainant prejudiced him and rendered him inappropriate for the role of disciplining officer. In normal circumstances, I would be of the view that such a situation would render the entire process as flawed. However, in the within case, it is clear that the appeal process conducted by Mr K was sufficiently comprehensive and detailed in nature and was, in effect, a de novo hearing of the case against the Complainant. Consequently, I am satisfied that the Complainant had opportunity, at the Appeal Stage, to have any detriment, which may have arisen at the Disciplinary Hearing, as a result of Mr H being potentially compromised, appropriately rectified.

However, notwithstanding the view set out the previous paragraph, I believe there to be issues with regard to the initial stages of process and, in particular, the timings in relation to the presentation of the case against the Complainant and how they might undermine the Respondent’s contention that the incidents of 12 August 2019 were the more serious and, in fact, were the main reason for the Complainant’s dismissal. Consequently, I am of the view that these defects cast a shadow over the entire process and its outcome.

Conclusion:

Having carefully reviewed all of the evidence, both documentary and direct, and taking into consideration the findings/conclusions, as set out above, I do not believe it was reasonable for the Respondent to make the decision it did with regard to the Complainant’s actions of 12 and 14 August 2019. Given the circumstances pertaining to both sets of incidents and in the context of the Complainant’s nine years of unblemished and committed service to the Respondent, I find the sanction of dismissal to be disproportionate.

In addition, I find the Respondent’s contention that the issues were such that they went to the heart of the relationship of trust and confidence and that the Complainant’s conduct amounted to gross misconduct are not well founded.

Consequently, taking all of the above into consideration, I find that the Complainant’s dismissal was unfair and that her claim in this regard is upheld.

In the light of the above decision, I note that, having acquired alternative employment, the Complainant is seeking compensation as her preferred form of redress, based on 21 weeks of loss.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s dismissal was an unfair dismissal and, therefore, in breach of the Unfair Dismissal’s Act, 1977.

Based on the above decision I award the Complainant €14,324.73 in compensation for the breach of her statutory rights.

Unfair Dismissals Act