ADJ-00021841

Complainant

Respondent

Anonymised Parties

Quality Inspector

Medical device manufacturing Company

Representatives

Richard Stapleton Solicitor

Graham Bailey 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-00028522-001

20/05/2019

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

CA-00028524-001

20/05/2019

The Complainant gave evidence as to measures adopted by her to mitigate her financial loss since her dismissal by the Respondent. She explained that since May 2019 she was in receipt of unemployment benefit. She went to the jobs club, wrote CV’s, applied for administration jobs. She has since tried to upskill and has registered with a Pitman’s course.

She explained that because she was dismissed for gross misconduct this has been a stumbling block for her in obtaining replacement employment.

The Respondent read their submission into the record. They provided no oral evidence in addition to same.

The Complainant’s supervisor was not in attendance. Two of the Complainant’s co-workers who were involved as her witnessed throughout the disciplinary process were in attendance.  

The HR supervisor who was involved in the process has since left the Respondent was not in attendance.

Its case was that the dismissal was not unfair and that the Complainant was dismissed in accordance with Section 6 (4) (b) of the Unfair Dismissal’s Act as amended.

The Respondent explained that it had 104 employees working at the site.

The Complainant was employed on the 1st of April 2012 and her employment ended on the 10th of May 2019. She was paid a gross salary of €33,446.00 per annum. The Respondent’s case is that following a thorough investigation and disciplinary process into the Complainant’s actions including several requests to attend internal performance improving planning sessions and following the application of the Respondent’s disciplinary policy, her employment was terminated on the grounds that her conduct was regarded as a very serious matter and was viewed by the Respondent as gross misconduct.  

The Respondent referred to its disciplinary procedure which lists insubordination as including failure to comply with a reasonable instruction or to carry out assigned work as an act of gross misconduct.

Its case was that the Complainant failed to comply with the PIP process as instructed and directed to her by her supervisor after issuing a first written warning. When considering what sanction to apply, the Respondent had regard to the seriousness of the allegations and also representation made by the Complainant within the process itself.

The Respondent directed me to the test set out in Looney and Co. Limited –v- Looney UD843/1984. In that case it was stated that I was to consider what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard by which the Respondents actions and decision should be judged.

The Respondent submitted that its decision to dismiss was reasonable and fair in the circumstances and that the dismissal was not unfair. It submitted the actions of the Complainant destroyed the Respondent’s trust and confidence in her and rendered the continuation of the employment relationship impossible thereby justifying dismissal. It stated that the misconduct went the root of the contract of employment. It had undermined the trust and confidence between the parties which was essential to the maintenance of the relationship of employer and employee.

The Respondent relied on the case of Knox Hotel land Resort Limited UD 27/2004.

The Respondent submitted the Complainant was afforded all benefits of fair procedures in line with the Respondent’s own policy, the WRC code of practice on grievance and disciplinary procedures (SI 146/2000) and the universal principles of natural justice. It submitted that the Complainant was informed in advance as to the nature of the allegations against her, she was afforded the right of representation, she was further provided with a number of fair and impartial hearings, she was given every opportunity to respond to the allegations against her.

Without prejudice to the above the Respondent argued that the actions of the Complainant contributed fully to her dismissal. It also relied on the case of Murray –v- Meath County Council UD 43/1978.

The Complainant’s case was that she was unfairly dismissed.

From her appointment in 2012 until her dismissal she enjoyed her career with the Respondent and proved herself to be an excellent and loyal employee meeting her performance targets and received annual salary increases as a result.

In 2018 her relationship with the Respondent took a turn for the worst. She discovered that she has had her salary capped and submitted that this was without reason or explanation.  

Arising from the capping of her salary, her engagement with her immediate supervisor deteriorated and from the period of July 2018 to May 2019 their relationship soured.

In November 2018, the Complainant was informed of a complaint against her by a co-employee. No details of this was provided to me by the Respondent. The Complainant advised that this complaint was never investigated or progressed to conclusion. She submitted that this complaint had a negative impact on her performance appraisal.   In February 2019 the complainant received her compensate year-end review which classified her as an employee who meets low expectations. The Complainant rejected the review conducted by her supervisor and she felt she could no longer tolerate the behaviour of her supervisor.

The Complainant made a formal complaint about her supervisor which was not investigated by the Respondent. This was in March 2019. The Complainant also lodged an earlier complaint with the WRC which I have no detail of.

The Complainant explained how an incident occurred on the 15th February 2019. She was attending as a support for her colleague who was having a meeting with their mutual supervisor. The facts of what happened at this meeting were disputed by the Complainant and her supervisor.

The Complainant’s colleague was in attendance at the hearing and corroborated the evidence given by the Complainant as to what occurred at this meeting. Her colleague raised a grievance against the supervisor in relation to her unprofessional conduct at this meeting.

On the 14th March 2019, the Complainant was invited to a counselling session arising from her alleged behaviour at the meeting of the 15th February 2019. This was instigated by her supervisor. The Complainant attended the informal coaching / counselling under protest. This counselling was carried out by her supervisor with whom she had the interpersonal issues. Evidence was given that the supervisor refused to take a witness statement from her colleague to support the Complainant’s position.

On the 27th March 2019, the Complainant received a written warning. The decision maker for same was her supervisor. By that date the Complainant had submitted a grievance to HR with regard to the actions of the supervisor. The Complainant appealed the decision. This hearing was heard on the 30th April 2019. The appeal was dismissed.

On the 1st May 2019, the date on which the complainant was notified that the appeal of her written warning was dismissed, she was invited to attend a PIP meeting. This was instigated by the same supervisor with whom she had raised the grievance. The complainant was not allowed to have a witness present. The Complainant objected to this.

The meeting was abandoned by her supervisor. The PIP issued and the complainant responded to same.

On the 8th May 2019, the Complainant was invited to attend a formal disciplinary meeting. The Complainant met with the plant manager and a quality manager.   She tried to explain her position re the PIP meeting however she felt that the decision was already made to dismiss her.

An outcome meeting was held on the 10th May 2019. The Complainant was dismissed for gross misconduct.

The Complainant’s solicitor made a number of submissions in relation to the process that was carried out leading to her dismissal. He submitted that the process was defective for a number of reasons including that the Respondent had failed to allow the appeal of the Complainants performance review in a timely manner, failed to allow the Complainant to appeal her PIP, failed to exclude the outstanding complaint against the Complainant in her performance review, failed to process the complaint against the Complainant in a timely manner, failed to deal with the Complainants complaint against her supervisor, failed to protect the Complainant against continued harassment and bullying from her supervisor.   He claimed that the Respondent failed to restrict the role of the Complainant’s supervisor in determining the outcome of the Complainant’s performance review, PIP meetings and disciplinary action, it failed to ensure the disciplinary process was free from bias and conducted in a fair and reasonable manner, it failed to adopt a fair disciplinary procedure, failed to have regard for the code of practice (SI146 of 2000), failed to afford the Complainant due process and natural justice, failed to afford the Complainant legal representation during the process, failed to provide the Complainant the opportunity the cross examine relevant witnesses including her supervisor, failed to consider an alternative to dismissal, failed to take into account the Complainants excellent work history prior to the appointment of her supervisor, failed to ensure that the proper person was appointed to conduct the disciplinary process. He argued that her supervisor was the decision maker in relation to the disciplinary action taken in March 2019. This same supervisor led to the investigation. He also submitted that the Respondent failed to accurately record minutes of meetings, failed to provide an effective appeals process. He disputed that the charge of insubordination was proved. He maintained that the Complainant did her normal duties without incident over this period. He explained that the only instruction which she refused was one which she honestly believed was unfair, prejudicial and undermined her health and safety.

The Complainant submitted that there was a clear attempt to remove her (and her colleagues) from the Respondents employment. This was achieved by firstly capping her salary without an explanation or justification and when challenged, the provision of a negative and unjustified performance review placing the Complainant on a PIP and then evoking a disciplinary process to bring about the desired result.

The Complainant submitted that this was a shameful act of corporate bullying.

The Unfair Dismissal Act 1977 provides that a dismissal is unfair unless there are substantial grounds justifying the dismissal. The Act does not provide a high degree of intrusion into the managerial decision making and the WRC and former EAT have consistently held that the question of whether the employer has demonstrated that there were substantial ground justifying the dismissal was to be answered by applying the objective standard of the way in which a reasonable employer, in those circumstances and in that line of business, would have behaved.

As Mr. Justice Noonan stated in Bank of Ireland – v Reilly [2015] IEHC 241, the question is “whether the decision to dismiss is within the range of reasonable responses of a reasonable employer into the conduct concerned”.

Section 6 (4) (b) of the Unfair Dismissal Act 1977 (as amended) refers to the conduct of the employee.

Section 6 (6) states that it is a matter for the employer to show that the dismissal resulted wholly or mainly from one of the matters specified in subsection (4).

Section 6 (7) sets out

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

The burden of proof is firmly on the Respondent.

The general approach of the Tribunal and the WRC to cases for dismissal for conduct was set out in Hennessy – v – Read and Write Shop Ltd UD 192 /1978.

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to

1. the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

2. the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

This requires the decision maker to consider whether the complainant was made aware of all the allegations and complaints that formed the basis of the proposed dismissal, whether the complainant had adequate opportunity to deny the allegations or explain the circumstances before the decision to dismiss was taken, whether the respondent believed the complainant had conducted himself or herself as alleged, whether the respondent had reasonable grounds to sustain that belief and if so whether the penalty of dismissal was proportionate to the alleged misconduct.

In Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 Mr. Justice Flood said where a question of unfair dismissal was in issue, there were “certain premises which must be established to support the decision to terminate employment for misconduct”. These he listed as follows:

1. The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

2. Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed and his or her version noted and furnished to a deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Flood J. added that “put very simply, principles of natural justice must be unequivocally applied”.

Having considered all the evidence presented to me both orally and in writing, I have decided that the decision to dismiss the Complainant was unfair.   I don’t accept that the principles of natural justice were unequivocally applied in this case by the Respondent.

The Complainant and her supervisor had a falling out some time in November 2018. The Respondent’s HR department were aware of complaints and counter complaints by both party against the other. The Respondent allowed a process against the Complainant to progress to two disciplinary stages without investigating a grievance brought by the Complainant against her supervisor.

The Complainant started working for the Respondent in 2012. I found it difficult to comprehend how things could have got so bad between late 2017 to May 2019 that she was dismissed for grounds not directly relating to her day to day duties as a Quality Inspector.   The complaints against her stemmed from her role as support/advocate for a colleague and the failure to interact with her supervisor and accept the decisions and direction from her supervisor.

In an operation that had at least over a hundred employees, I found it incredible that the Respondent did not intervene in this interpersonal dispute and investigate the Complainants grievance and the outstanding complaint against the Complainant which led to the unfavourable review.

I do not accept that the decision to dismiss was proportionate to the gravity of the complaints made against the Complainant.

I also find that in a small manner was attributable by her own actions and conduct to her dismissal.

In those circumstances I decide that the dismissal was unfair.

As for redress, I believe that reinstatement is not the best solution for either party. Compensation is, however I am not satisfied that the Complainant has done all that she could have to mitigate her loss. As set out in Sheahan – v – Continental Administration Co. Ltd, UD 858/1999, the complainant is required to adopt a proactive approach to obtaining replacement employment. She is required to spend a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that she is available for work. I note the complainant’s evidence that the fact that she was dismissed for gross misconduct did make it more difficult for her to seek employment.

The hearing was listed relatively quickly, namely five months to the day after the decision to dismiss was made. The Complainant has indicated that having registered for a course, she would not be able to commence full time work until May 2020. I note that the complainant is doing her course through flexi-study. This would allow her to undertake other work. In a time as this of such low unemployment, the Complainant could have obtained other work even on a part time basis. The evidence she gave was that she decided to change her career direction.

CA-00028522-001

The case is well founded. I award the Complainant a gross payment of Sixteen thousand five hundred Euros (€16,500.00) which is circa six (6) months’ pay to be taxed in the normal manner taking into account Revenue Rules on termination of employment.

CA-00028524-001.

This is a duplication of the above Unfair Dismissal claim and was withdrawn.

Unfair Dismissal. Fair Procedures.