Complainant

Respondent

Anonymised Parties

A Store Manager

A Store

Representatives

Cian Moriarty, Fachtna O'Driscoll Solicitors

Ursula Sherlock, Ibec

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-00027182-001

20/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998(Withdrawn during the hearing)

CA-00027182-002

20/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00027182-003

20/03/2019

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

CA-00027182-004

20/03/2019

This claim consisting of four parts was submitted in March 2019. The claim under the Employment Equality Act was withdrawn on day of hearing in August 2019.

The Complainant was represented by his Solicitor and the Respondent by IBEC.

The Respondent furnished a written statement refuting the claims on 6 August 2019. The Respondent expressed a keen interest in securing a written submission from the complainant along with a clarification on the claim taken in accordance with Employment Equality Legislation. A Postponement was sought in that vein.

The Hearing progressed as planned and both parties submitted extensive written submissions and supporting documents.

At the end of the hearing, I sought a record of a Grievance outcome from the Respondent, which I received.

I permitted the complainant time to respond to this document. This response was received on 6 November 2019 and copied to the Respondent.

CA-00027182-001 Claim for Unfair Dismissal

The Respondent runs a large store chain created in Ireland in 2011 and is currently on a continuum of development and expansion.

Preliminary Issue: The Respondent raised an objection that the complainant was seeking redress under three Acts for the same set of facts and sought that two be withdrawn. Henderson v Henderson (1843) 3 Hare 100 and Cunningham V Intel ltd [2013] IEHC 207 cited.

The Respondent also relied on Section 101 of the Employment Equality Act which they submit prohibits dual claims for unfair dismissal and employment equality.

The Respondent went on to outline the burden of proof required in a claim for discrimination and summarised that the complainant had not advanced a complaint internally before making his complaint to the WRC.

CA -00027182-001 Claim for Unfair Dismissal

The Respondent has refuted that the Complainant was unfairly dismissed. The Respondent representative outlined that the complainant had started work on 27 September 2011 as a Senior Sales assistant and had been promoted to Store Manager. His employment was supported by a contract of employment which referred to a Colleague Handbook. This handbook outlined the company Policy on “behaviour expected ““Grievance and Disciplinary procedures” “Equality and Diversity “The respondent case was that the complainant as Store Manager would have a high level of familiarity with these documents and policies. These policies are prescriptive and provide an insight into the values of the company.

The Respondent outlined that a Retail Assistant, Ms B, in the store had raised concerns about the complainant’s behaviour on 30 October 2018 directly with the Area Manager. She had made an earlier complaint in June 2018 on her personal staff relations difficulty with the complainant but had indicated that she did not wish to progress the matter formally at that time.

In October 2018, Ms B reported that other staff had told her that they felt uncomfortable with the complainant’s inappropriate behaviours including unwanted physical touching and she cited a 16-year-old ex-employee, Ms A. She believed that Ms A had left the business because of “inappropriate physical contact “by the complainant. She also mentioned that another colleague, Ms B had shared a complaint with her. She had tried to deal with the matter directly with the complainant, but this had not worked, and she remained dissatisfied.

The Area Manager (Mr AM) instigated an Investigation as the matter was deemed serious. He informed the complainant of the commencement of a formal investigation that he would be suspended with pay during the investigation.

“Following your meeting on 30 October 2018, I write to confirm that you are suspended on full pay with immediate effect in relation to gross breach of Company’s behaviour and conduct policy.

You will be informed of the outcome of the investigation, and if no disciplinary action is needed you will also be informed which date to resume work. If the outcome of the investigation requires you to attend a disciplinary hearing, then you will be informed of the date and time of the hearing “

The Respondent obtained statements from 9 members of staff while efforts to ensure Ms as attendance were rejected by her mother.

The Complainant attended an investigation meeting on 5 November 2018. He refused the offer of representation.

He told the investigation that this was a conspiracy generated by Ms B and that while he had hugged staff, no one had taken serious offence to it and it was “banter in the workplace”

The Investigation did not make findings but indicated that there were grounds to proceed to a Disciplinary hearing. The Disciplinary hearing conducted by Mr C (Area Manager) took place on November 9 attended with the Store Manager as support. The Complainant was invited to respond to the evidence. The Complainant continued to blame Ms B for her role in contacting Ms A at home. He disputed inappropriate contact with staff.

The decision to dismiss the complainant was communicated in writing on 29 November 2018

“ …… I find your actions have fell below the expected standards we require from a member of management when colleagues have told you to stop hugging them, but you continued to do so. As a member of the management team, I find your actions are wholly unacceptable and has resulted in colleagues being offended “

The Complainant appealed the decision to dismiss and he presented at appeal on 17 January 2019 in the company of the same Assistant Manager as support. The Appeals Officer was Mr D, Regional Manager.

The Complainant outlined that the Investigation was too quick, that “hugging “was a universal practice, not just to females and should be viewed as a minor misconduct and not gross misconduct. He went on to say that if he had been directed to stop he would have. He addressed his views that dismissal was not warranted and the sanction disproportionate.

ON 11 march, 2019, the complainant was informed that the decision to dismiss had been upheld.

The Respondent submitted that as an employer, they place a great emphasis on maintaining a sae and respectful workplace. The Respondent directed the hearing towards Looney and Looney UD 843/1984, where the EAT held that it was not for the Tribunal to seek to establish the guilt or innocence of the complainant or even put themselves in his shoes, but rather to:

“consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set the sup as a standard against which the employers’ actions and decision be judged “

The Complainants actions in the case amounted to breach of trust between the parties in the employment relationship. This served as an unacceptable departure from the staff handbook on the core value of “Respect each other “and amounted to serious misconduct warranting summary dismissal.

As the appointee store manager, he was the company representative on site and had not practiced the core values of the company and had not demonstrated insight or empathy into the upset he had caused. Trust and Confidence had been destroyed Burchell v Premier recruitment International ltd T/A Premier Group UD 1290/2002.

The Complainant had been afforded fair procedures in line with company policy, SI 146/2000 and the universal practice of natural justice

1 He was aware of the allegations

2 He was given an opportunity to respond a counter

3 The matter was fully investigated

4 Representation

5 Decision to dismiss had regard for complainants’ representations and was impartial

6 Procedures conducted by separate managers

7 Appeal provided

The Respondent submitted that faced with the facts of the case, the company acted reasonably as a reasonable employer would have and the decision taken to dismiss was justifiable in the circumstances.

The Respondent concluded by submitting some case law which identified procedural deficits, but which had not rendered a dismissal unfair.

Radford V Barnmore (UD 628 /2008), Heavey V Foley Packaging [2005] JIEC 2101

Evidence of Mr C (Area Manager and Decision Maker)

Mr C had been in his role 5 years. The Complainant did not report to him. In conducting the 2-hour disciplinary hearing, he was struck that the complainant felt that he had not done anything wrong. He read out the witness statements. He had no memory of the complainants request to cross examine witnesses.

Mr C submitted that the complainant had admitted to “pushing and hugging “and he viewed this as being very serious and warranted dismissal. He based his decision on the witness statement and the complainant’s response. The Complainants behaviour was inappropriate as a Store manager and was not horseplay. His contact with Human Resources was as a “sounding board “only.

During cross examination, Mr C confirmed that he had prepared by reviewing the investigation notes. He reaffirmed that he had no memory of being asked to allow cross examination of witnesses. He confirmed that the submitted statements were anonymised.

Mr C disputed the need to interview Ms B as there was no ambiguity. The Complainant had admitted the actions. He spent 6 to 7 days thinking over what he had reviewed. He cross checked the reference to “Horse play “in the staff handbook and recommended that the complainant be dismissed as he had “placed the company at risk “

He denied that the decision had been predetermined and confirmed that cover for the complainant had not been secured until after Christmas.

Mr C stated that he did not type himself but couldn’t offer a reason for the short notice of the disciplinary hearing. He made it clear that he owned the decision taken to dismiss and was not unduly influenced in that regard.

Mr C confirmed that the complainant had not been participant in performance review. He confirmed that he had not received an Investigation Report, just an analysis. There were no terms of reference. He had not placed a weighting on the complainant’s length of service.

Mr C confirmed that the Organisational Chart placed Mr X as the complainants next in line manager

Evidence of Mr O, Appeals Manager.

Mr O had worked with the company for 2 years and 5 months. He was not the complainant’s manager.

He was clear in his preparation to hold the appeal. He read the investigation notes the disciplinary outcome. This was his first time meeting the complainant. His role was to establish whether the outcome of dismissal was correct.

He heard the complainant on appeal and found the behaviour attributed to him to be far more severe than horse play. It was totally inappropriate and had negatively impacted a colleague. He admitted that he had delayed in issuing his appeal outcome as he wanted to deliberate and be sure that that it was the right decision.

During cross examination, he confirmed that he became Regional Manager in December 2018 and was vastly experienced in conducting disciplinary procedures. He understood that his role was to determine whether the decision to dismiss fitted the crime involved. In this, he was mindful of the company’s core values of “Trust and Respect “and having heard the complainant and considered his responses he “as the business “had lost complete faith in the complainant.

Mr O upheld the decision to dismiss as the complainant had not demonstrated self-awareness or remorse and his role as store manager was no longer viable.

Mr O confirmed that no complaint of harassment had arisen but 4-5 staff out of a total of 18-20 had been negatively impacted by the actions of the complainant. There were no other options available to manage this situation outside dismissal. He could not recall if the complainant had directly asked for his job back on appeal.

Evidence of Ms HRM (Human Resources, Ireland)

Ms HRM is the sole Human Resource Manager for Ireland and works with a Business partner. Her role in this case was solely advisory and as a “sounding board “. She has worked at the business for 5.5 years.

Ms Harm was aware that Ms B had raised a complaint in June 2018 but there had been no mention of hugging. The October encounter with the area manager had referenced two employees, Ms A an Ms Y.

Ms B had not submitted a statement.

She recalled that the Area Manager had decided to move to investigation stage. All statements were sent to the employee relations team. The Complainant has been offered EAP.

She recalled a conversation with Mr C who had rejected the culture put forward by the complainant as an appropriate defence.

The Complainants role had been filled by a replacement store manager three days a week and the role had not been officially filled until June 2019.

Ms HRM submitted that she had no role in decision making at any level this role had devolved to Mr C and Mr O respectively. She confirmed that Ms Y, mentioned in Ms Bs email had left the business.

She confirmed that the decision to suspend the complainant was a protective measure following consultation with ACAS code.

During cross examination, Ms HRM confirmed that her involvement in the case was prompted by the area manager who met with Ms B on October 30. She confirmed that she had not retained notes of this discussion.

Ms HRM referred to an earlier conversation with Ms As mother, in the context of a phone exit interview, where she referred to her concerns regarding the complainant. The Area Manager had not come across a reference to “hugging “by the complainant any earlier than the October timeline.

Ms HRM confirmed that Ms As mothers’ concerns were not put to the complainant as this coincided with his suspension on October 30 and was overtaken by this supervening event.

CA -00027182-002   As set out in Preliminary Issue and subsequently withdrawn by the complainant.

CA -00027182-003. The Respondent objected to the duplication in CA -00027182-001

CA -00027182-004 The Respondent relied on Section 8 of the Minimum Notice and Terms of Employment Act, 1973 where no obligation arises to pay notice in case of “misconduct by the other party “

The Complainant worked first as a Retail Operative and latterly as a Store Manager with 15 staff     based at the Respondent store until his dismissal on 30 November 2018

CA -00027182-001 Claim for Unfair Dismissal

In June 2018, Ms B, an employee at the store raised an informal grievance against the complainant and the Assistant Manager. The grievance alleged bullying behaviour and centred on Ms B claiming that she was ostracised by the complainant.

Ms C was dissatisfied with the handling of the complaint and formalised her complaint to the Area Manager, Mr A, who then met with Ms B.

The Area asked the complainant if he hugged members of staff? The complainant said he did and that he saw it as a means of boosting morale, team spirit and friendship. Nothing transpired from this.

In October 2018, Ms B progressed her concerns to Human resources.

On 30 October 2018, the Complainant met with the Area Manager and Ms HRM in his store. He was was called into the office and placed on immediate paid suspension for a “single incident of inappropriate touching of a female “He denied the allegation but left the shop.

He received a letter dated 31 October, 2018 , which referred to a “ gross breach of company behaviour and conduct policy “ He was invited to investigation , but the source of the original allegation was never made clear .On 4 November , 2018 , the   witness statements were sent by the Area Manager to Ms HRM and drew her attention to the three statements compiled by females on the staff .This proved pre judging .

During the investigation, conducted by the Area Manager, the complainant was asked about Ms A, a former employee, yet, she had not submitted a complaint or a witness statement. The Investigation failed to take account of the complainants stated beliefs that Ms B had negatively influenced some of the witness statements and nothing was ever put to Ms B during the same investigation.

The Investigation lasted some a short time after which the Area Manager conveyed to him that he believed that there were grounds for Disciplinary action.

By letter dated November 7, 2018, the complainant was invited to a Disciplinary Hearing which now had an expanded list of accusations from what had been commenced at investigation.

1 Gross breach of behaviour and conduct policy, inappropriate behaviour towards colleagues.

2 Failure to uphold the core company value, Respect each other.

3 Loss of faith and trust in your role as store management

The Disciplinary Hearing progressed on 9 November and the complainant articulated that he had hugged in a previous job and it was an observed practice at management meetings, MS B was referenced by him, but no steps were taken to include her in the investigation. The Complainant was not heard on his defence of “horse play “He submitted that his job was already earmarked as vacant at a recent manager meeting. This was not probed.

There was a delay of 21 days before he secured the outcome of the disciplinary hearing. The Complainant was wrongly classified as being on annual leave for two weeks of his suspension and this was never rectified.

The Complainants representative raised several suggested shortcomings in the Disciplinary procedures utilised by the Respondent.

The Respondent relied on ACAS code of practice in conducting the procedures. This code has no jurisdiction in Ireland. The Complainant was not provided with an Irish version of the disciplinary procedure. Irish Law and Constitution permit cross examination of witnesses and the complainant was not informed of this right.

The Complainant was faced with a charge of gross misconduct which could not be cross referenced to any stated act in the staff handbook. Horse play is set out as a “minor misconduct” and this reflected the complainant’s behaviour rather than gross misconduct.

The Complainant submitted that he had not been afforded the benefit of any lesser sanction and the projection by Mr C that he would reoffend was baseless.

Mr O, on appeal concluded that the complainant had harassed his colleagues, yet, there was no complaint of harassment.

The Complainant remained a stranger to the identity of the complainant who made the initial allegations against him. He understood that his suspension arose from an unresolved grievance of bullying, which was never put to him.

The witness statements were unsigned.

The Investigator posed the following question to witnesses

I just want to make you aware that your store manager X, is currently out of the business and I want to ask you a few questions. has there ever been any occasion where you have received a complaint from any member of staff about unwanted conduct?

This was a one-episode process, exclusive of Ms B and never revisited over the exhaustion of company procedures.

The Complainant held a strong belief that he was to be replaced at the store and submitted this as pre-judgement. He also outlined the significant delay in notifying the complainant of outcomes of the processes.

The Complainant representative expressed a dissatisfaction with the role played by Ms HRM in the case. Prior to her involvement on 30 October, the area manager had met with Ms C regarding her complaint of bullying and had not activated any of the company’s procedures. The Area manager had referenced a phone call between Ms as mother and Ms HRM during the investigation.

Complainants Evidence

The Complainant outlined his work history. As Manager of 15 staff, he was based in the shop and undertook coaching and mentoring with staff. He had not had a complaint in over 7 years.

In late May/June 2018, Ms B complained that she was being bullied by the store managers. He understood that the problem had been addressed and Ms B was ok with the assistant manager after that.

Ms B then repeated her complaint, but she had no examples, so he referred her to the area manager. The Area Manager told him that there was nothing to worry about, that Ms B had personal issues. He did ask whether he hugged staff? and he told him he did.

Later in September 2018, the complainant knew that Ms B was still chasing an outcome and she was to have another meeting with the area manager.

He understood that on October 30, the Area Manager, Ms HRM and Ms B met for a tripartite discussion after which he was called into the office by Ms HRM. He was then accused of inappropriately touching female members of staff. He was sent home and left his keys.

He was not surprised to learn that he had been suspended. He reflected on Ms Bs role and was certain that she had personal issues of a very serious nature .He understood that MS A had left the business as Ms B was constantly ringing her at home , he had not had a problem with Ms A He knew that Ms B was close to two other named workers , but his initial reaction was that this was exaggerated and would pass .He was aware that Ms B complained a lot, but did her work .

The Complainant was not aware that Ms Y (aged 23) was actively seeking another job. He knew that she was close to Ms B (aged 40).

He explained that “hugging “was a wide spread practice at the shop and was not reserved for females. He had no recollection of hugging Ms A. He would have liked to have been able to question the witnesses.

He couldn’t recall if he had raised the culture of hugging at the Investigation but had raised it during the Disciplinary procedure. He was surprised to see the extra charges put to him.

The Complainant confirmed that he had refused to speak to Ms A s mother when she visited the store. He maintained that she had spoken to someone else. He felt he was made a joke off on snap chat by his peer group after that and was certain that he was to be replaced.

The Complainant outlined that he had been traumatised by his treatment at work and delayed telling his parents as he did not leave his apartment. He carries a high level of frustration at the lack of communication surrounding the entire process.

He found new work in April 2019.

During cross examination, the complainant confirmed that Ms as mother put pressure on her to leave. He confirmed that he had pinched Ms A. He objected to her mother coming into the store as Ms A, as an employee should have been able to stand up for herself.

He confirmed that his behaviour amounted to horse play, which he rejected as “messing around and tom foolery “. He had tried to impress that point on the Disciplinary managers as he had not intended any malice. He understood that the investigation was to address “hugging and pushing “

The Complainant confirmed that he was totally unaware that he could cross examine witnesses. He submitted that he had not wanted to mention names but had named the 3 managers who had mentioned to him on the anticipated vacancy in his role in the store. He outlined that business was “marginally negative “. Staff Communication Meetings were held weekly.

The Complainant contended that he had not been heard in the case, if he had been directed to stop he would have accepted that. He had not asked for a second chance. He summarised that he had been unfairly dismissed.

The Complainant gave some explanation of his job search loss of 4 months’ work.

CA -00027182-002 Employment Equality advanced by oral and written submission before withdrawal during the hearing

CA -00027182-003 The Claimant submitted that a procedural unfairness had applied in the disciplinary process.

CA -00027182-004 Minimum Notice

The Complainant was denied notice.

CA -00027182-001 Claim for Unfair Dismissal

I have considered the presentations, both oral and written made by the parties in this case. This is a claim for Unfair Dismissal and the Respondent, on whom the burden of proof lies had submitted that by the complainants conduct in his role as Store Manager, he demonstrated inappropriate behaviour in the work place. Following which his continued employment was untenable. He was dismissed without notice on 30 November 2018. The Respondent has relied on the defence contained in Section 6(4) (b) of the Act on Conduct.

The Complainant in the case has submitted that he was unfairly dismissed and while he had some appreciation that his behaviour was a problem for the company, he argued that that he had not been cautioned on it. It had therefore  been unreasonable to dismiss him short of attempting a less severe sanction. He said that he was traumatised by his experience. He found new work in April 2019.

The EAT in Pacelli V Irish Distillers [2004]15 ELR outlined a clear application of Section 6(4) (b) in a case where a long-term employee was accused of “overloading interference with counters and intimidation “The Dismissal was found to be fair.

The test for fairness is objective and the Tribunals function is to determine what a reasonable , prudent and wise employer would have done having regard to the nature of the case and not whether the claimant on evidence should be dismissed .The EAT was satisfied that the respondent had conducted a thorough investigation as per the test of reasonableness established in Noritake Irk ltd V Kenna ( UD 88/1983)

The Tribunal in Pacelli found that the respondent company had solid, sensible grounds and a reasonable belief that the complainant was involved after a thorough investigation and no explanation from the complainant. This was one of the earlier cases which relied on video evidence footage.

I would like to make several points of observation regarding the instant case. The Respondent presented a single contract of employment in this case, that of Senior Sales Assistant from 2011. I did not have the benefit of a revised contract to reflect the complainant’s transition on promotion to Store Manager.

While, I appreciate that the respondent organisation is in a continuum of expansion, I cannot accept that the staff handbook reflected practices in the Republic of Ireland and alternatively references to UK. Considering the now clear differentials in both jurisdictions post Brexit, the Respondent should give immediate attention to producing an Ireland version. This variance came into sharp focus in the consideration of suspension in this case and I fully accept the complainant’s submissions that the ACAS code was incorrectly applied. I accept that at the time referred to Brexit had not crystallised as it now has.

I have endeavoured to probe the circumstances of this case with the parties as I was unclear from the outset as to just what the complainant stood accused of? I did not have the benefit of meeting, Ms B, Ms A, Ms Y or the area manager involved in the investigation. This made matters difficult to determine as I had the complainant who was participant from the outset and Ms HRM, for the Respondent who adopted an acknowledged cursory but advisory role. Mr C and Mr O entered the arena post investigation. I would have liked to have met the Area Manager as it seemed to me that the Organisation had at least some awareness if not memory of the complainant’s unusual behaviour pattern much earlier than purported at October 30, 2018.

I read Ms B s complaint from June 2018, which made a passing reference to her work difficulties with the complainant. Her main bone of contention appeared at face value at least to rest with the Assistant Manager. I did not have the benefit of a procedural through put on this complaint and all I have is that the complainant said that it was not advanced at the time. He qualified this by saying that he was aware that Ms B had personal problems, the nature of which was disclosed at hearing and sounded very grave.

He did volunteer that the Area Manager asked him if he hugged staff? but could not place an accurate time line on this question. This for me suggested that there was an organisational awareness of the complainant’s practice of “hugging “in advance of September 2018, yet no apparent action was taken to probe or curtail this very unusual behaviour. I have made no finding on the complainants guilt or innocence in that regard .

A clear sub plot in the case emerged surrounding the role played by Ms A and her mother . Ms HRM told me that Ms As mother had raised concerns about the complainant, yet these were never formalised or substantiated by either party. It was clear to me from the way she presented her version of events that Ms HRM was party to information that concerned her around the business from this source. I believe that she acted in what she interpreted to be the business best interests by moving to suspend the complainant on October 30. However, the generic and non-particularised basis for this suspension goes to the very root of this case. I cannot accept that Ms HRM stated that she did not put the issues raised to the complainant directly prior to his suspension .

In returning briefly to Pacelli, I note the following:

If Management have a reasonable suspicion that persons are involved in misconduct it must investigate and if that person cannot be identified with certainty, management have an obligation to satisfy themselves that reasonable evidence exists to warrant dismissal and where behaviour can be attributed to a finite number of persons management is afforded such reasonable evidence in the absence of explanation.

As I have alluded to earlier, reliance was placed on electronic information in this case. In the instant case, I found that the investigation was not accompanied by a stated complaint or terms of reference. Instead, the Area Manager was assigned to investigate something generic and non-particularised in

“gross breach of company’s behaviour and conduct policy “

As far as I can ascertain, the complainant was not provided with a primary complaint or indeed the identity of a complainant. I found this to be a staggering omission and I will return to this later.

However, I have had to consider the sequence of events which led to the complainant’s suspension on October 30. This was wrongly classified as annual leave for a 2-week period and the Respondent has untaken to refund this to the complainant. I gather from the replying submission of 6th November 2019 that this payment is still outstanding.

In Gleeson (State) V Minister for Defence and AG [1976] IR 210, Walsh J stated:To the right to work (Irish Constitution) may be added the right to continue to earn a livelihood which can be taken away or forfeited only if the procedures followed is clearly lawful.

He went on to summarise that lawful procedures are owed to all employees under the Constitution.

The Complainant failed to appreciate the severity of the circumstances he found himself in. He delayed in seeking legal advice until after his dismissal. I would have expected him to be far more pro-active in his own case. To expect the respondents concerns to blow over was naïve on his behalf.

The subsequent flimsy pieces of paper which the respondent presented as witness statements were wholly unsatisfactory and I accept the complainant’s submissions in their entirety in that regard.

At this point, I would like to refer to the company policies presented at hearing

“An investigation is simply gathering the facts to be able to decide on the next steps. It can involve an informal or formal investigating meeting, but this is not necessary in every case depending on the issues that we are considering. It could simply be a collation of information an evidence, but we will generally hold an informal investigation discussion with you to get your provisional response to our concerns. We will carry out investigations as quickly as possible and let you know the outcome and next steps”

The investigation is to be conducted by someone more senior and who is impartial.

I have a difficulty with this imperative in this case as the Investigator was the Area Manager, who was joined at selected interviews by Ms HRM.

The Area had an undisputed knowledge of the complainant’s behaviour in the “hugging territory “and had not ruled it out of order previously. Ms HRM had conversed with both Ms B and Ms As Mother and none of what she elicited at these fora was captured and framed into a bone fides allegation with dates, times or witnesses mentioned. The Investigators cannot have been impartial to my mind.I found the Company procedure on investigation to fall far short of robust .

I asked Ms HRM what exactly was being investigated in the complainant’s investigation from October 30 - November 5?   she referred to Ms Bs complaint of 27 September 2018. I asked if the company had closed out this complaint /grievance? It is important for me to set out in full the response I received to this request.I am grateful for the co operation of the respondent in that regard .

In a letter dated 3 December 2018, the Area manager on behalf of the respondent wrote the following to Ms B.

Following the email dated 27 September 2018, where you raised concerns in relations to inappropriate behaviour from X, Store manager. I write to inform you of my findings.

Having now concluded my investigations I can confirm your grievance has been upheld. However, due to data protection, I am unable to inform you of any action taken directly relating to another colleague.

I would like to thank you for bringing these matters to our attention and can confirm that the appropriate action has been taken and will result in a change of management.

A 5-day window of appeal was permitted.

This throughput was remarkable as the 27 September email from Ms B referred to being bullied by the complainant. I checked if there was a parallel process whereby the complaint of bullying was progressed? There was not.

What transpires therefore for me, at least is the following.

Ms B first made a complaint of poor staff relations in June 2018. This centred largely on the Assistant Manager and as secondary reference, the complainant. This complaint was not addressed to the authors satisfaction( acknowledged by respondent) and she re-echoed a plea for intervention in what she called a bullying issue on 27 September 2018. She also accompanied it by a threat of legal action against the respondent for inertia regarding her concerns. Most important for me, she did not mention “pushing and hugging “in either document.

I am unclear how the Area Manager made findings in respect of this complaint as the complainant who was dismissed in the instant case was not asked to engage on these emails under any specific policy. Neither was Ms B or by association, Ms A or her parent a visible contributor in the investigation which took place October 30 - November 5. This is the investigation which led to the complainant’s dismissal.

A Fair Investigation forms the cornerstone of all fair dismissals. It should have regard to all the facts, issues and circumstances surrounding a case. In the instant case, I have found the investigation to be so deeply flawed as to be defunct and unreliable.

It is most likely, based on the balance of probabilities and the witness evidence of Ms HRM that the respondent received verbal accounts of the complainant’s behaviour at work, which were not formalised into a complaint. I appreciate that in the concurrent climate of “Me Too “Movement that the Respondent had concerns regarding what they heard and felt compelled to inquire, however by launching the type of investigation they did, I conclude that they shunned fair procedures.

However, the “Respect each other “should have been mutually beneficial to all parties and allegations need to be framed, stated, considered and responded to. Particularly in the face of a recorded denial. It is important to allow someone to know the entirety of the case against them and to retain their good name pending a fair investigation and an opportunity to challenge the evidence. Re; Hughey {1971] IR 217, Borges V Fitness to Practice Committee {2004}

While I am aware of Keane J in Mooney V A Post [1994] ELR 103the concept of natural justice is an imprecise one and what its application requires may differ significantly from case to case,

I am satisfied that while the Respondent had some concern regarding the complainant’s behaviour in his capacity as Store Manager which warranted further inquiry, they did not put these concerns to the complainant in any transparent manner and caused him inordinate reputational damage in the process. He faced the ultimate sanction of dismissal. He was wronged.

As I have decided that the Investigation was deeply flawed. The dismissal is already unfair. It is not necessary for me to go further into the process outside a brief statement that I would have expected the Disciplinary Managers to have been a lot more discerning on securing an Investigative Report prior to advancing to Disciplinary.

I learned that the dismissal was based on witness statements and the complainant’s partial admittance. I noted that the generic allegations had expanded inexplicably in the absence of an Investigation Report or findings. The Labour Court in DHL v Michael Coughlan UDD 1738 has been highly critical of this practice in the past and I am critical of it today. The Complainant was introduced to all the witnesses who were assembled with speed. It is important to reflect that these were his subordinates at the business and thus had an added element of humiliation for him to endure.

I have taken some guidance from an EAT case of Reilly V Donal O Gallagher, Sacred Heart Nursing Homer UD 799/2008. Thiscase evolved from written complaint by one care assistant against another. the Nurse on duty on the night of the complaints was not interviewed. Issues previously on her personnel file, of which she had no knowledge were put to the Care Assistant. She was dismissed for a “serious breach of trust and gross misconduct “

The EAT determined:

There is no doubt that the complaint against the appellant was serious in nature and its extent. When considering the enquiry conducted by NM, the Tribunal was not told who was spoken to and who was not, except to say that the nurse on duty at the time of the complaint was not spoken to. To have reached the conclusion that the appellant was guilty of breach of trust and gross misconduct based on a complaint from CA without speaking to the Nurse on Duty at the time of the complaint is extraordinary.

The Tribunal reflected that the appellant behaved inappropriate but not amounting to gross misconduct or breach of trust. Dismissal was found to be disproportionate and unfair.

My findings in this case centre on:

1. The cause for concern allegedly expressed by Ms B or Ms A or her family were not framed into an allegation in a transparent manner. It remains unclear what case the complainant was being asked to respond to outside “pushing and hugging “. It is unclear how the term gross misconduct evolved.

2 The Respondent rushed into an investigation without regard for the presiding legislation in Ireland or the over arching importance and application of SI 146/2000 and the rights of the complainant.

3 The Respondent had erred in not addressing the June/September complaints in a transparent way and had failed to appreciate that the concerns of Ms B had not gone away. The generic allegation at Investigation was broadened without explanation.

4 The Respondent appointed an Area Manager to run an investigation who had awareness and involvement in the issue previously. He failed to produce the required Investigation Report with findings and nobody seemed to notice. He was not available to the hearing. He considered texts attributed to Ms B, raised this during the investigation and without Ms B being present at investigation (Page 90).

5 The Complainant, while I appreciate was shocked and traumatised, failed to appreciate the enormity of the issue and did not seek representation in the workplace. Given the most recent findings of options for representation at Disciplinary hearings in Mc Kelvey V Irish Rail, 2019 at the Supreme Court, this was unwise.

6 The Respondent did not pick up on earlier procedural flaws and compounded them at Disciplinary and on appeal.

6 A lesser sanction was not considered.

7 The Company Policies of Bullying and Harassment were not visibly pursued, yet findings were issued to a non-participative complainant and the complainant himself .

In the case of Reilly and Bank of Ireland, Noonan J reflected on the importance of judging the impact of a dismissal on an applicant. Sadly, I found a lack of empathy in that regard in this case. I accept there were live unresolved issues at the store, but it is a complete oversimplification that it was directed at one person. The situation would have benefitted from Staff facilitation at a much earlier juncture.

I have found that given the circumstances of the case, I cannot accept that the respondent is permitted to rely on Section 6(4) (b) in defence of the claim.

The Complainant was unfairly dismissed, and I find his claim well founded.

CA-00027182 -002       Employment Equality       Withdrawn

CA -00027182-003 Industrial Relations

I have considered the procedural flaws submitted by the complainant in the earlier claim and decided. I have not found merit in this dispute as it is duplicated.

CA -00027182-004 Minimum Notice

I have found that the complainant was unfairly dismissed, and Section 8 of the Minimum Notice Legislation does not apply. I order the Respondent to pay the complainant 4 weeks’ pay in compensation for the contravention of Section 4 of the Act. That amounts to €2975.00. The claim is well founded.

Decision:

CA -00027182-001

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act

I have found that the complainant was unfairly dismissed. I have carefully considered the options open to me an conclude that the only remedy which is practical and viable in this case is compensation.

I am mindful that the complainant found new work in April 2019 and was active in the pursuance of new work.

I order the Respondent to pay the complainant €15,000 in compensation in respect of the procedural unfairness and lapse in natural justice as a just and equitable remedy for unfair dismissal. I have included an amount to reflect prospective loss as the complainant’s new job did not mirror the security of the job with the Respondent. I have also factored in a reduction to take account of the complainant’s own contribution to his demise.

I would strongly recommend that the Respondent invests in a Fire Line management training module.

Perhaps the parties could engage on the commitment to resolve the outstanding annual leave payment ?

CA -00027182-003 I have not found merit in the dispute.

CA -00027182-004   Minimum Notice

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 11 of the Minimum Notice and Terms of Employment, 1974, requires that I make a recommendation in relation to the complaint in accordance with Section 4 of the Act.

I have found that the complainant was unfairly dismissed, and Section 8 of the Minimum Notice Legislation does not apply. I order the Respondent to pay the complainant 4 weeks’ pay in compensation for the contravention of Section 4 of the Act. That amounts to €2975.00.

Unfair Dismissal . Procedural framework , Industrial relations , Minimum notice .