Complainant

Respondent

Anonymised Parties

A General Operative

A Manufacturing Company

Representatives

SIPTU

Mr. Padraic Lyons B.L. on the instructions of MacCarthy Johnston Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00024386-001

20/12/2018

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

CA-00024386-002

20/12/2018

The Complainant was employed by the Respondent as a General Operative from 1 September, 2003 until 11 October, 2018 when he was dismissed from his employment for gross misconduct. The Complainant claims that he was unfairly dismissed from his position and that the manner in which the dismissal was effected was lacking in procedural fairness and natural justice.

The Respondent denies that the Complainant was unfairly dismissed from his employment and contends that he was dismissed as a result of gross misconduct following a thorough and fair disciplinary process.

The Complainant claims that he was summarily dismissed from his employment and did not receive his statutory notice entitlement contrary to Section 4 of the Minimum Notice and Terms of Employment Act 1973. The Respondent disputes the claim and contends that the Complainant was dismissed for gross misconduct, and therefore, was not entitled to statutory notice.

CA-00024386-001 – Complaint under the Unfair Dismissals Act 1977

The Complainant submits that he was informed on 7 July, 2018 that he was being suspended on pay pending an investigation into an allegation of bullying. An investigation meeting took place on 13 July, 2018 and an investigation report was produced on 31 August, 2018. A response to that report was submitted on behalf of the Complainant on 6 September, 2018.

A disciplinary hearing was convened by the General Manager, Mr. C, on 12 September, 2018 and reconvened on 11 October, 2018 following further meetings conducted by Mr. C with witnesses who had given statements to the investigating officers. The Complainant was dismissed at the meeting on 11 October, 2018 and appealed to the HR Manager, Ms. D. A written statement of appeal was made on behalf of the Complainant on 16 October, 2018 an appeal hearing was held on 31 October, 2018. The appeal was dismissed on 3 December, 2018.

The Complainant submits that it is not for the Adjudication Officer to decide whether he or she would have taken the decision to dismiss. The High Court in Bank of Ireland v Reilly [2015] IEHC 241 held that: “the question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”. It is the Complainant’s position that the decision to dismiss him did not fall within that range of reasonable responses and that the conduct of the employer in relation to the dismissal was unreasonable and in breach of the LRC Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).

The Complainant submits that the Respondent’s Policy Statement on Sexual Harassment, Harassment and Bullying defines bullying as “repeated aggression, verbal, psychological or physical conduct by a group or individual against others. It is systematic and ongoing”. However, the statement of the alleged victim Mr. A, and statements from other witnesses are entirely devoid of specifics, and in particular show a total absence of times and dates, containing instead opinion and anecdote. The sole date given for any act of bullying in the investigation report is 3 July, 2018, on which date one of the witnesses is said to have seen the Complainant write the word “RAT” on a piece of cardboard.

The Complainant submits that the Supreme Court in the case of Ruffley v The Board of Management of St. Anne’s School [2017] IESC 33 held that, to demonstrate bullying, “what is required to be repeated is inappropriate conduct undermining the individuals dignity at work and not merely that the plaintiff be able to point to more than one incident of which he or she complains”. The Complainant submits that, in this case, Mr. A was not able to point to more than one incident. It was submitted that opinion and anecdote was not a reasonable basis for the investigation to conclude that the Complainant was bullying Mr. A and that Mr. C, General Manager, as the disciplinary decision-maker, should not have accepted that it was.

Furthermore, the Respondent’s Policy Statement requires an employee seeking to complain of bullying to “submit a complaint in writing”, which Mr. A never did. A formal complaint in writing is required is required by the LRC Code of Practice on Addressing Bullying in the Workplace (S.I. No. 17 of 2002) and significantly, as regards the present case, the Code states that “the complaint should be confined to precise details of actual incidents of bullying”. It is submitted that precise details of actual incidents of bullying are absent both from Mr. A’s written complaint, since it does not exist, and from the statements given to the investigating officers. The Complainant contends that the failure of the employer to insist upon a written complaint from Mr. A was unreasonable and has caused significant prejudice to him.

Moreover, it was submitted that Mr. A told the investigator on 10 July, 2018 that he was “in a bad place” and had left his home “partly because I know [the Complainant] knows where I live and I have seen him passing by and looking in at my house”. The Complainant completely denies any harassment of Mr. A at his home and no evidence was provided or sought for this assertion. Mr. A also stated that he was availing of counselling. It was submitted that the reliability of his evidence ought therefore to have been treated with some circumspection by the Respondent. Mr. A was unable to give evidence of any specific act of bullying other than the “RAT” incident referred to above.

The Complainant submits that the High Court held in the case of Lyons v Longford & Westmeath ETB [2017] IEHC 272 that: “It is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence”. This entitlement was denied to the Complainant and it was submitted that this failure was not cured by the “opportunity to put questions to Mr. A through [the General Manager, Mr. C] and the investigators”. The Complainant contends that the denial of this entitlement to Mr. A was unreasonable and particularly serious in the context of the failure of the Respondent to require that Mr. A produce a written complaint giving precise details of the actuals acts of bullying.

The Respondent submits that reliance was placed in the report on the evidence of a witness who had made a previous claim of harassment against the Complainant and whom had previously been accused of assault by him. The Complainant contends that the evidence of this witness should therefore have been treated with great care.

The Complainant also questioned the credibility of the evidence given by a further witness who was a long-standing shop steward within the Respondent company. The Complainant contends that it is not credible that this person would have witnessed bullying by the Complainant for a period of nine years (as was alleged) without reporting it to management. It was submitted that this witness was unable to give evidence of any specific act of bullying.

The Complainant also submits that another witness changed his statement in relation to the alleged writing by the Complainant of the word “RAT” on a piece of cardboard. It was submitted that this witness when interviewed as part of the investigation stated that he saw the Complainant write the word “RAT” on the cardboard. However, when this witness was interviewed by Mr. C in the course of his re-investigation he stated that he did not see the Complainant write the word “RAT”.

The Complainant referred to the case of Georgopoulus v Beaumont Hospital [1998] 3 IR 132 where Hamilton CJ stated that in the case of employment investigations the facts upon which allegations are based do not have to be established beyond all reasonable doubt and can be dealt with on the balance of probabilities “bearing in mind that the degree of probability required should always be proportionate to the nature and gravity of the issues to be investigated”. The Complainant submits that the “nature and gravity” of the issues in this case are charges of gross misconduct giving rise to the loss of employment after 15 years’ service – the requisite degree of probability should therefore have been viewed as being at the upper end of the spectrum and the conclusion of the investigation report that “[the Complainant] is bullying Mr. A” was not sufficiently well founded for this to be made out.

The Complainant submits that the General Manager, Mr. C (the disciplinary process decision maker) took further statements from six workers who had already been interviewed by the investigating officers. These statements were provided to the Complainant and he was invited to make a written response. It was submitted that the Complainant objected to Mr. C’s decision to “re-open the investigation”. In response, Mr. C claimed that he had not re-opened the investigation but had “simply sought clarification from certain witnesses”. The Complainant submits that he does not accept that the re-interview of six persons who had already been interviewed by the investigating officers can be said to be anything other than a re-opening of the investigation. The proper action for Mr. C to have taken if he required clarification from certain witnesses would have been to revert to the investigators (who might in turn have sought to re-interview staff). In this case, by conducting second interviews and relying upon those interviews in coming to his decision to dismiss, Mr. C adopted a multiplicity of roles i.e. those of investigator and disciplinary decision maker, and in doing so breached the clear separation of investigation and disciplinary processes which the company’s procedures were predicated upon. The Complainant submits that this was inappropriate, unfair and unreasonable.

It was submitted that the Complainant had a clean record within the company for 15 years until 27 April, 2018. Although Mr. C refers to his record in the letter of dismissal as a matter which he had considered before reaching his decision to dismiss, it is contended that this was given insufficient weight, particularly given the paucity of actual evidence of incidents of bullying, and that this as unfair and unreasonable. Mr. C stated in the dismissal letter that he had “taken your disciplinary record with the company into account”. This record consisted of a verbal warning for bullying even though the allegation had clearly been one of harassment. No written complaint of bullying or harassment was ever made and no statements from witnesses were provided. The Complainant does not regard it as a coincidence that he was suspended on 7 July, 2018, the day after his appeal against the verbal warning was rejected. This matter was referred to the WRC under the Industrial Relations Act 1969 on 9 July, 2018 and withdrawn on 12 October, 2018 the days after the Complainant’s dismissal. The Complainant submits that this verbal warning should have been disregarded and that it was unfair to take it into account.

CA-00024386-002 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

The Complainant claims that he was summarily dismissed from his employment and did not receive his statutory notice entitlement contrary to Section 4 of the Minimum Notice and Terms of Employment Act 1973.

CA-00024386-001 – Complaint under the Unfair Dismissals Act, 1977

The Respondent submits that on or about October, 2017 all employees of the company, including the Complainant, were provided with training on bullying and harassment. The Complainant was re-issued with the Respondent’s Bullying and Harassment Policy and Terms and Conditions of Employment in or about April, 2018. The Complainant was also given the Respondent’s Bullying and Harassment Policy in or about 2003, at the outset of his employment.

Prior to receiving the complaint which resulted in his dismissal, the Complainant had received a verbal warning for bullying of another colleague, in or about March, 2018. On 6 July, 2018 a colleague of the Complainant, Mr. A, made a formal complaint of bullying against the Complainant. Mr. A alleged that he had been subjected to an ongoing pattern of bullying over an extended period of time. It was alleged that the Complainant had engaged in hurtful bulling of a personal nature, which included mocking Mr. A in relation to an ongoing health difficulty (haemorrhoids), making comments of a personal nature and name calling – referring to Mr. A as “Blue Nose”. On the same date Mr. A submitted medical certificates for work related stress.

The Complainant was notified on 6 July, 2018 that he was suspended from his duties with pay pending the outcome of an investigation into the matter. On receipt of the complaint by Mr. A, the Respondent directed an immediate investigation into the complaint. The investigation was conducted by Mr. B (Operations Manager) and he produced a report in relation to the matter on 30 August, 2018. Nine employees gave statements as part of the investigation including, Mr. A.

Mr. B’s report concluded that the Complainant had engaged in bullying and harassment of Mr. A, and specifically that there had been: persistent abusive insulting and offensive comments; mimicking, humiliating, laughing at and insulting Mr. A; repeated negative comments about Mr. A’s appearance; inappropriate teasing; and inappropriate use of company property.

The Respondent submits that no disciplinary action was taken by reason of the investigation report alone. However, on foot of the report a disciplinary hearing was convened. The disciplinary hearing took place on 12 September, 2018 in the Respondent’s premises. The hearing was convened before the Respondent’s General Manager, Mr. C. The Complainant attended the hearing with his trade union representative. The disciplinary meeting was also attended by Mr. B, Investigator and a notetaker. At the disciplinary hearing, the Complainant was afforded ample opportunity to challenge the evidence against him and to advance his defence.

By letter dated 11 October, 2018, the Complainant was informed of the determination of the disciplinary hearing in upholding the initial investigation’s finding of gross misconduct. The said letter set out the full rationale for the decision by Mr. C. In particular, Mr. C upheld the allegation that the Complainant had persistently mocked Mr. A’s medical condition by way of scratching himself and mimicking his walk. In addition, Mr. C held that the Complainant had written the word “RAT” on sheets of cardboard erected in the workplace by Mr. A. For the reasons set out in his decision Mr. C concluded that the appropriate sanction for the Complainant’s behaviour was dismissal.

The dismissal was appealed by the Complainant by letter dated 16 October, 2018. Ms. D, HR Manager, conducted the appeal process and a hearing took place on 31 October, 2018 as part of the process. The hearing as part of the appeal process took place at a hotel and was attended by Ms. D, the Complainant, his trade union representative and a notetaker. Numerous points and questions were put to Ms. D by the Complainant and/or his trade union representative. By letter dated 3 December, 2018, Ms. D rejected the appeal and gave reasons for upholding the finding of gross misconduct against the Complainant.

Submissions

The Respondent submits that the Complainant’s behaviour in this case is a classic case of workplace bullying and that he has no conceivable ground for complaint in relation to the conclusions reached. The decision was arrived at following a comprehensive and fundamentally fair process, as a result of which there were substantial grounds justifying dismissal. The Respondent further asserts that the dismissal was reasonable.

The Respondent denies that there were any procedural deficiencies in relation to the manner in which the disciplinary process was conducted. The Respondent relies upon the test identified by Laffoy J. in the High Court case of Shortt v Royal Liver Assurance [2008] IEHC 332 where it was held: “the authorities …. make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee’s employment and the circumstances surrounding the disciplinary action (per Barrington J. in Mooney v An Post [1998] 4 IR 288 at p.298). The important point is that the decision maker must not act in such a way as to imperil a fair hearing or a fair result (as per Hamilton C. in Gallagher v Revenue Commissioners (No. 2) [1995] at p.76)”.

The Respondent submits that the requirements for fair procedures vary from case to case; there is no set formula that can be followed in each and every case. Instead, general principles have been identified over time, by reference to specific issues that arise on a case by case basis. Where it is suggested that an individual has been deprived of fair procedures, the key criterion for consideration is whether or not the procedural deficit exposed the individual to the risk of an unfair hearing or an unfair result.

Bearing this standard in mind, it is apparent that the decision to dismiss the Complainant was unimpeachable. On any reasonable analysis the Respondent adopted a fair process which allowed the Complainant an ample opportunity to meet the charges against him. The conclusion reached both in relation to the factual findings made and the decision to dismiss fall squarely within the range of reasonable responses which a reasonable employer was entitled to reach.

The Respondent submits that not alone was the Respondent entitled to reach the decision which it did as a matter of law, it was fundamentally necessary for it to reach that decision by reference to the standards of what is right. Mr. A was entitled to expect a workplace where his dignity is respected and the Respondent has an obligation to uphold that entitlement. Here, it is apparent that the Complainant’s conduct was nothing short of repugnant at a human level. He sought to belittle and undermine Mr. A over an extended period of time. Behaviour of that kind is simply unacceptable, and in that context, it is very clear that the Respondent had no option other than to terminate the Complainant’s employment.

The Respondent adduced evidence from Mr. B, Investigator, Mr. C, General Manager, Ms D, HR Manager and four of the witnesses who had given statements about the alleged bullying during the course of the investigation/disciplinary process.

The Respondent relied upon the following cases in support of its position, namely: Ruffley v Board of Management of St Anne’s School [2017] 2 IR 596; Foley v An Post [2000] ICR 1283; Anglian Home Improvements Limited v Kelly [2005] ICR 242; Doyle v Asilo Commercial Limited [2008] IEHC 445 and Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229.

CA-00024386-002 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

The Respondent submits that the Complainant was dismissed for gross misconduct and in those circumstances was not entitled to receive statutory notice or payment in lieu thereof. The Respondent disputes the Complainant’s claim under the Minimum Notice and Terms of Employment Act, 1973.

CA-00024386-001 – Complaint under the Unfair Dismissals Act 1977

The Law

Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides:

“(1) 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.

…

(4) Without prejudice to the generality of subsection (1) of this section, 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 one or more of the following:

(a) not relevant

(b) the conduct of the employee

(c) not relevant

(d) not relevant

…

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or 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 substantial grounds justifying the dismissal.

(7) 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.”

In reaching my decision I have taken into consideration of all written and verbal submissions of the parties and I have had full regard to the evidence adduced in the course of the proceedings.

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

The Respondent contends that the Complainant was dismissed as a result of bullying a work colleague which was held to amount to gross misconduct following the conclusion of a thorough investigation and disciplinary process which fully complied with the principles of fair procedures. The Respondent submits that the Complainant’s behaviour was nothing short of repugnant and that he sought to belittle his work colleague (Mr. A) over an extended period of time. The Respondent contends that the conclusion reached both in relation to the factual findings made following the investigation of the bullying complaint and the decision to dismiss fall squarely within the range of responses which a reasonable employer was entitled to reach.

The Complainant denies the allegations of bullying and contends that the investigation and disciplinary process which was conducted by the Respondent was procedurally flawed and lacking in fairness. The Complainant contends that the Respondent’s decision to dismiss him did not fall within the range of reasonableness and that the sanction of dismissal was disproportionate given his clean disciplinary record within the company up to 27 April, 2018 (being the date that he was given a verbal warning for bullying). The Complainant contends that this warning was taken into account, quite inappropriately, during the course of the investigation into the alleged bullying which resulted in his dismissal and should have been disregarded.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly[2015] 26 E.L.R. 229 where it was held that: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “.

In the case of Samuel J. Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

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 version noted and furnished to the 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.

Put very simply, principles of natural justice must be unequivocally applied.”.

Therefore, the two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are (1) whether the Respondent acted reasonably in dismissing the Complainant and (2) whether the dismissal adhered to the principles of fair procedures.

In considering the reasonableness or otherwise of the dismissal, I note it was not in dispute that the Respondent initiated a disciplinary investigation process on 6 July, 2018 in relation to allegations of workplace bullying against the Complainant and that he was suspended with pay on this date pending the completion of the investigation. The complaint of bullying against the Complainant was made by a work colleague, Mr. A, who claimed that he had been subjected to ongoing bullying by the Complainant over a sustained period of time which included mocking him in relation to an ongoing health difficulty (haemorrhoids), making comments of a personal nature and name calling. The investigator, Mr. B, Operations Manager, interviewed Mr. A and took a detailed statement from him in relation to the alleged bullying and I note that it was indicated by Mr. A in this statement that the bullying had been ongoing “for years but especially over the last year”. The investigator subsequently took witness statements from seven of the Complainant’s work colleagues who attested to the veracity of the allegations of bullying made by Mr. A. I note that the allegations made by Mr. A and the statements from his colleagues were put to the Complainant during the investigation and disciplinary process and the Complainant totally refuted that he had engaged in any acts of bullying or other conduct towards Mr. A which could be construed as gross misconduct.

Having regard to the evidence adduced, I am satisfied that the Respondent conducted a comprehensive and thorough investigation and disciplinary process in relation to the allegations of bullying which were made against the Complainant by Mr. A. Moreover, I am satisfied that the Respondent was presented with compelling evidence from the Complainant’s work colleagues to corroborate the allegations of bullying which Mr. A had made against the Complainant. In the circumstances, I find that that the Respondent had substantial grounds to conclude that the Complainant had been bullying Mr. A in the workplace over a sustained period, and therefore, that he had engaged in behaviour which amounted to gross misconduct in accordance with the company’s internal disciplinary policies.

In considering the question as to whether the decision to dismiss was proportionate in the circumstances, I note the Respondent adduced evidence that the allegations of bullying which were made against the Complainant by Mr. A in July, 2018 occurred within a period of three months after he had been given a verbal warning for bullying another colleague in the workplace. It was not in dispute that the Complainant had received a copy of the Respondent’s Sexual Harassment, Harassment and Bullying Policy in April, 2018 (and at the outset of his employment in 2003) and that he had also attended a Bullying and Harassment Workshop set up by the company on 12 October, 2017. It is clear that the Respondent’s Policy Statement on Sexual Harassment, Harassment and Bullying provides that sanctions up to and including dismissal are applicable under the internal disciplinary procedures where a complaint of bullying is upheld against an employee. I am therefore satisfied that the Respondent took all reasonable steps to communicate its policy on bullying and harassment in the workplace to the Complainant and that he was fully aware of the sanctions for breaches of the policy.

Having regard to the totality of the evidence adduced, I find that the actions of the Respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the Complainant’s dismissal and that this sanction was proportionate in the circumstances.

The next issue which I must consider relates to the procedural fairness or otherwise of the Complainant’s dismissal. The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. In considering this matter, I am satisfied that the Respondent had an established Grievance and Disciplinary Policy in place which conforms to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000. I am also satisfied that the Complainant was brought through the various stages of the disciplinary process, namely suspension, investigation, disciplinary hearing and appeal in relation to the allegations of gross misconduct.

The Complainant claims that the dismissal was unfair on procedural grounds and contends that a number of elements of the investigation and disciplinary process were conducted in a procedurally unfair manner such as to render the entire process fundamentally flawed. The specific elements of the process which the Complainant claims were procedurally unfair included that the allegations of bullying by Mr. A were not made in writing and the witness statements relied upon by the Respondent were devoid of specifics, in particular of times and dates; the evidence adduced in these statements was insufficient to ground a charge of gross misconduct; that he wasn’t afforded the right to cross-examine witnesses during the disciplinary process and the investigation was re-opened by the person who made the decision to dismiss.

The first issue raised by the Complainant in relation to the procedures applied during the investigation/disciplinary process relates to the contention that the complaint of bullying by Mr. A was not made in writing and therefore did not comply with the procedures set out under the internal Policy Statement on Harassment and Bullying. In considering this issue, I note that Mr. B, Operations Manager, gave evidence that the Complainant contacted him by telephone on 6 July, 2018 while absent from work on sick leave and indicated that he wished to make a formal complaint of bullying against the Complainant. Mr. B stated that the Complainant informed him that he was in a “very bad place” and proceeded to outline details of the alleged bullying by the Complainant over the phone. Mr. B also adduced evidence that he was informed by Mr. A during this telephone conversation that he was not comfortable returning to work as a result of the alleged bullying.

I note that Mr. B subsequently met with the Complainant on 10 July, 2018 at a local hotel and took a detailed formal statement from him during the course of an interview in relation to the alleged bullying. I note that the statement was signed by Mr. A and I am satisfied that a copy of same was provided to the Complainant during the investigation of the complaint. Furthermore, I am satisfied that the Complainant was made fully aware of the allegations made against him prior to being interviewed in relation to this matter during the investigation process. In the circumstances, I find that the Complainant was not prejudiced in any way as a result of Mr. A’s failure to put his complaint in writing.

I have examined the statements made by both Mr. A and the witnesses in question, and I am satisfied that there was sufficient clarity and detail provided therein to enable the Respondent to make a reasonable conclusion that the Complainant had engaged in the act of bullying Mr. A over a sustained period of time. I accept that a number of the witness statements did not include specific dates in relation to the alleged occurrences of the acts of individual acts of bullying. However, I note that Mr. C sought clarification from a number of witnesses during the disciplinary process in relation to certain issues contained within their respective statements and it was confirmed by a number of the Complainant’s work colleagues that they had witnessed him bullying Mr. A on a daily basis over a sustained period of time prior to the making of his complaint. In the circumstances, I do not accept the Complainant’s contention that the complaint of bullying by Mr. A and the witness statements made by his work colleagues were devoid of specifics or that the evidence adduced against the Complainant was insufficient to ground a charge of gross misconduct.

0n the issue concerning the cross-examination of witnesses, I note that there has been differing views from the courts in relation to the extent of the right to cross-examine in workplace disciplinary proceedings. In the case of Michael Lyons –v- Longford Westmeath Education and Training Board 2017 IEHC 272, the High Court held that both an accused person and his or her accuser have constitutional rights to use their respective legal representatives to cross-examine each other in investigations in which the accused person’s job is at stake. However, I note that the Lyons case appears to be at odds with other decisions of the High Court (including Shortt v Royal Liver Assurance Ltd [2008] IEHC 33 and O’Leary v An Post [2016] IEHC 237) and with decisions of the Supreme Court in cases such as Mooney v An Post [1998] 9 ELR 238 and Rowland v An Post [2017] 1 IR 355. Those other decisions implied that cross-examination will be an entitlement in some, but not all, cases in which an individual’s job is at stake. I take the view that it remains the case that an accused person always has the right to challenge (in an appropriate manner) the evidence against him or her and that there will be some circumstances in which an accused person will be entitled to cross-examine his or her accusers.

In the instant case, I am satisfied that the Complainant was made fully aware of the allegations made against him and was provided with copies of the complaint made by Mr. A and the witness statements made by his work colleagues. I am satisfied that it was not possible from a practical perspective to allow the Complainant to cross-examine his accuser (Mr. A) in person during the process as Mr. A was absent from work on stress related sick leave during the entirety of the investigation and disciplinary process (and has not returned to work to date). It was accepted by the Respondent that the Complainant was not afforded the opportunity to cross-examine any of his work colleagues who made witness statements during the investigation process. However, I am satisfied that the Complainant was afforded ample opportunity to consider and challenge the statements made by Mr. A and his colleagues via the investigator and disciplinary process decision maker at the relevant stages of the process but declined to take up that opportunity. Having regard to the circumstances of this case, I find that the Respondent’s failure to provide an opportunity for the Complainant to cross-examine Mr. A and the other witnesses were not sufficient to render the procedures render the procedures fatally unfair.

On the issue concerning the re-opening of the investigation, I note that it was not in dispute that Mr. C (the disciplinary process decision maker) conducted interviews with a number of the witnesses who made statements during the investigation and took further statements from them during the course of the disciplinary process. I am satisfied that the reason why Mr. C conducted these interviews was to obtain clarity from the witnesses in relation to certain issues raised by the Complainant in relation to their respective statements during the investigation. I note that copies of the additional statements taken by Mr. C were subsequently provided to the Complainant and he was afforded ample opportunity to comment and/or challenge the clarifications provided therein. In the circumstances, I do not accept the Complainant’s contention that the actions of Mr. C in seeking clarification from the witnesses amounted to a re-opening of the investigation.

Having carefully considered the manner in which the investigation and disciplinary procedures were applied in the present case, I am satisfied that the Complainant was given advance notice of meetings, was advised of the seriousness of the matters being investigated, was afforded the opportunity to attend an investigation meeting and separate disciplinary hearings, was offered representation at all meetings and had all allegations put to him and was given the opportunity to respond to them. I am also satisfied that the details of the alleged gross misconduct were clearly communicated to the Complainant from the outset and that he was fully aware of the nature of the investigation that was being conducted and that the Respondent was treating the matter with the utmost seriousness.   The Complainant was also afforded an appeal process which was conducted by an appeal’s officer who had no involvement in the initial investigation, disciplinary hearing and was not party to the decision to dismiss him.

Having considered all aspects concerning the manner in which the disciplinary procedures were conducted in the circumstances, I find that the procedures applied by the Respondent were fair and that any perceived omissions were not of such a significance in this case as to render the dismissal procedurally unfair. In the circumstances, I find that the Complainant was not unfairly dismissed by the Respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts is not well founded.

CA-00024386-002 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

Section 8 of the Minimum Notice and Terms of Employment Act, 1973 provides as follows:

“8. Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

Having found that the Respondent acted reasonably in all of the circumstances of the case in dismissing the Complainant for gross misconduct and in accordance with Section 8 of the Act, I do not find that the Complainant is entitled to be paid notice as claimed. Accordingly, I find that this complaint is not well founded and does not succeed.

CA-00024386-002 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint under Minimum Notice and Terms of Employment Act, 1973 is not well founded.

CA-00024386-001 – Complaint under the Unfair Dismissals Act, 1977

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

I find that the complaint under the Unfair Dismissals Acts is not well founded.

Unfair Dismissals Acts, 1977 – 2015 – Gross Misconduct – Bullying – Grievance and Disciplinary Procedures - Minimum Notice and Terms of Employment Act, 1973 – Statutory Notice