ADJ-00024838

Complainant

Respondent

Anonymised Parties

A Sales Agent

An Insurance Company

Representatives

Mary Paula Guinness BL

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-00031610-001

16/10/2019

The complainant joined the respondent company on December 5th 2016 as a sales agent.   She was dismissed on April 17th 2019 for gross misconduct following a complaint from an employee regarding her use of the word “nigger” in reference to a colleague. Her case is that her dismissal was unfair and that it was related to a concern she raised about a sales strategy introduced by the respondent in March 2018. She also alleged that her conduct was not out of line with that of her colleagues, who, she said engaged in sexually explicit banter and other unacceptable behaviour.

Chronology of Events Leading to the Complainant’s Dismissal

On March 27th 2019, one of the complainant’s colleagues wrote to the HR Department and reported that, the previous day, he heard the complainant referring to another employee as a “nigger,” saying to him, “go back to your side nigger,” meaning, go back to your side of the office. The person reporting this incident said that it wasn’t the first time he witnessed the complainant using this term in relation to a black employee.   The complainant was suspended from work pending an investigation into what had been alleged.

On April 2nd, the manager appointed to conduct the investigation interviewed the employee who reported the incident and the person who was the subject of the racial slur. For the purpose of this report, I will refer to that person as “Richard.” Richard said that he and the complainant engaged in slagging all the time and that “she didn’t mean any offence.” When he heard the term “nigger,” he said that he was taken aback and he told the complainant not to say it again.

Two other employees who were in the area when the complainant made her comment were also interviewed on April 2nd. One said that it was clear that Richard felt that the comment “went too far” and that the four colleagues who heard it were shocked and stunned. This employee said that he heard the complainant referring to a different black employee as a “nigger” on another occasion. He also described an insulting remark she made to a colleague about his weight, which was overheard by a customer on the phone.

The complainant attended an investigation meeting on April 3rd 2019, at which she was accompanied by a colleague. When she was asked for her version of what occurred on March 26th, the complainant said that she called Richard a “nigga” and not a “nigger,” and that they engaged in banter all the time and that they had a very open relationship. The complainant said that for the few days previously, Richard had been “slagging her hair.” She said that her comment wasn’t said “in a bad way” but that she could see how it seemed offensive and she apologised. She said that Richard was fine the next morning and the banter resumed and he “joked about putting his thing in my yogurt.”   The complainant said that she could understand how she might be “taken up wrong when someone is not used to how we are together.”

On April 4th 2019, the investigating manager reported his conclusions to the HR Manager:

“To close, my findings are straightforward as (the complainant) herself confirmed she used the word in reference to another member of staff (although she would argue a slightly lesser connotation). I believe that in this instance she said it more than once. I believe she said confirmed it (sic) to another member of staff and I believe she has used it in reference to black employees and in reference to black people previously on site.”

As a result of these findings, on April 9th 2019, the complainant attended a disciplinary meeting. The HR Manager read the findings of the investigating manager to the complainant.   In response, the complainant said that Richard did not make a complaint about her comments and that it was a matter of interpretation as to whether he was offended. She said that several employees sent her messages to say that they have no problem working alongside her. She said that her manager knows about the banter between the teams in the sales area and she was shocked that an allegation had been made against her. She asked for several other employees to be interviewed, but she subsequently decided against this course of action.

The complainant attended a second disciplinary meeting on April 17th 2019, when the HR Manager informed her that other information had come to light in the course of the investigation including other references to colleagues as “niggers.”   At the end of the meeting, the complainant was informed that she was being dismissed. In a letter from the HR Manager on the same day, the complainant’s dismissal for gross misconduct was confirmed. Although she was offered the opportunity to appeal against the termination of her employment, she did not do so. When I asked her why she chose not to appeal, she said, “it wouldn’t have helped me.”

The respondent’s policy on equal opportunities states as follows:

“An employee engaging in any form of discrimination will be subject to disciplinary action, up to and including termination.”

At the hearing, Ms Guinness submitted that my function as the adjudicator of this complaint is to decide whether, within the band of reasonableness, the employer’s decision was not unfair. In this regard, she referred to the 1981 case at the UK Court of Appeal of British Leyland UK Limited v Swift IRLR 91. Here, Lord Denning MR stated:

“The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases, there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.

In her judgement in the Circuit Court case of Allied Irish Banks plc v Purcell[2012] 23 ELR 189, Ms Justice Linnane referred to the British Leyland case and remarked as follows:

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

Ms Guinness said that the decision to terminate the complainant’s employment was “entirely reasonable in all the circumstances.   There was a fundamental breakdown in the trust and confidence that the Respondent had placed in the Complainant as it became clear during the investigation and disciplinary process that there had been other instances of racial comments and inappropriate behaviour by the complainant.”

Ms Guinness also argued that the complainant’s failure to appeal against her dismissal in accordance with the company’s disciplinary procedure is detrimental to her claim now.   In this regard, she referred to the case of Pungor v MBCC Foods Limited UD 584/2015. Finding that the dismissal of Ms Pungor was not unfair, the Employment Appeals Tribunal at the time considered that “the employee had an obligation to exhaust the internal disciplinary procedure prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.”

Concluding the respondent’s case, Ms Guinness said that the respondent acted reasonably in terminating the complainant’s employment. A full investigation and a disciplinary hearing took place at which the complainant was entitled to be accompanied. She was invited to provide any witnesses or documents in support of her position and she was offered the right to appeal which she chose not to exercise. In all the circumstances, it is the respondent’s case that the dismissal of the complainant was not unfair.

On the form that she submitted to the WRC, the complainant argued that she was dismissed because she refused to manipulate customer data so that the respondent would get business for their new insurance company instead of the business going to brokers.   She said, “I was not happy breaking GDPR and I made management aware of this.”

In her evidence at the hearing, the complainant said that this occurred in March 2018, when the respondent was engaged in a sales campaign. The complainant said that she was concerned about a breach of data protection and she brought her concern to the attention of management. She claims that as a result of raising this issue, things changed and managers stopped communicating with her. She said she was left working on a different product on her own, and when this business closed in November 2018, she was re-assigned to a sales role. The complainant said that there were no other problems with her work and she insisted that her dismissal was associated with the fact that she raised a concern about the sales strategy in March 2018.

In cross-examination, the complainant had no response to Ms Guinness’s question regarding the time lapse between March 2018, when her concern about data protection was raised, and April 2019, when she was dismissed.

The complainant said that she had a great relationship with Richard and that they used to “slag each other off.” She said that, to get each other’s attention he referred to her as “whitie” and she referred to him as “nigga”.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) provides 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 all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4)(b) of the Act provides that;

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The letter of dismissal refers to the incidents that resulted in the complainant’s dismissal:

On March 26th 2019, the complainant was racially offensive to her colleague, using the word, “nigger” when she told him to go back to his side of the office;

The investigation that resulted from this incident concluded that the complainant used the same insulting remark about another colleague on March 26th and 27th 2019;

On a date unknown, she repeated this racial insult when she showed a colleague a video on her phone depicting two black men fighting;

On March 26th 2019, she referred to a colleague as “a fat fuck;”

On March 16th 2019, following an accident that resulted in an employee being injured, the complainant was reported to have referred to this employee as “dirty blood.”

In response to these incidents, at the end of a disciplinary investigation, the HR Manager decided that the complainant breached the company’s Equal Opportunities Policy and that her actions amounted to gross misconduct.

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

As has been established by the EAT in many instances, and specifically in the British Leyland and the Allied Irish Banks v Purcell cases referred to by Ms Guinness, my task is to determine if it was reasonable for the respondent to conclude that the complainant’s treatment of her colleagues amounted to gross misconduct and if dismissal was a reasonable sanction.

The complainant did not dispute the evidence of her colleagues during the investigation, and in her defence, she claimed that Richard did not take offence at her remarks. The note of the meeting with Richard was submitted in evidence at the hearing and it shows that at first hearing the comment, he said, “what?” and the complainant repeated the remark, “go back to your side nigger.” Although, at the investigation meeting, Richard said that he didn’t think the complainant was being malicious, it is apparent that he was offended, because he asked her not to use the word again. This is not the response of a person at ease with this remark as part of general banter. The use of the word “nigger” is a universally understood to be pejorative, a demeaning insult and a racial slur. It is intended to “put down” an individual because of they are not white and, even if not heard by the subject, it is never not offensive. The complainant’s reference to another colleague using the same term, but out of his earshot, was intended to insult him because he is black. It is my view that having uncovered these facts, any reasonable employer would have dismissed the complainant.

The issues that led to the complainant’s dismissal are substantial and I find that there is no connection between the fact that she raised concerns about a sales strategy in March 2018 and her dismissal in April 2019.

Was the Process Fair?

Having reviewed the notes of the investigation meetings and the disciplinary meetings that were submitted in evidence, I find that the complainant represented herself well and had an opportunity to argue against her employer’s finding that her behaviour should be considered as gross misconduct. She was accompanied by a colleague at the investigation meeting and the disciplinary hearing, but her colleague wasn’t available at the meeting at which her dismissal was confirmed. I find that nothing arises from this and that no other outcome would have emerged from this meeting if she had been accompanied.

It is my view that, in advance of submitting her complaint to the WRC, the complainant had an obligation to use the company’s appeal procedure to argue against her dismissal.   I agree with her argument that an appeal may not have helped her, but her failure to conclude the process to its end is evidence of her disrespect for standard workplace procedures and for the resources of the WRC.

I am satisfied that the procedure followed by the respondent that resulted in the complainant’s dismissal was a fair procedure.

Having considered all the evidence, verbal and written, and having taken account of the legal framework regarding the dismissal of an employee due to misconduct, I have decided that from a substantive and a procedural perspective, the decision to dismiss the complainant was not unfair.

Gross misconduct