UDD202

This is an appeal by Mr Ibrahim Salah (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00008547, dated 26 June 2018) under the Unfair Dismissals Act 1977 (‘the Act’). The Notice of Appeal was received on 13 July 2018. The Court heard the appeal in Cork on 27 November 2019.

The Factual Matrix

The Complainant commenced employment with RCI Call Centre (Ireland) Limited (‘the Respondent’) on 11 February 2013. The Respondent is a Holiday Exchange Provider and facilitates its members to trade time-share holidays with other members. The Complainant was employed as an RCI Guide at the Respondent’s EME call centre in Cork and his role was to handle enquires from the Respondent’s members and to encourage them to avail of further offers and services from the Respondent. The Complainant is fluent in a number of languages, including Arabic and Italian, less so in English. He worked as part of the Respondent’s Italian team. The Complainant’s starting gross base salary was €20,500.00. He was also eligible to participate in the Respondent’s Incentive Scheme. The Complainant’s P60s show he had the potential, in the years prior to his dismissal, to earn up to approximately €39,000.00.

On 20 April 2016, the Complainant was involved in a heated exchange with a colleague as a result of which he was issued with a final written warning on 5 May 2016, following a disciplinary investigation conducted by Ms Agnes Condor (Operations Manager). The Complainant appealed that sanction to Mr Mίcheal Lombard, Head of Operations, who upheld the decision on 12 May 2016.

On 7 December 2016, the Complainant had a difficult phone call with a customer, at the end of which the Complainant referred to the caller as an ‘impolite animal’. Immediately afterwards, a heated exchange took place between the Complainant and a number of his colleagues. The Complainant used a rude Italian word (‘cazzo’) during the exchange with his colleagues. The exchange was heard by a customer whose call had been put on speaker-phone. The Respondent conducted an investigation into the incident. Ms Agnes Condor was the investigator and she was accompanied by Ms Michelle Dorney (HR Business Partner). During the investigation, a further two allegations were put to the Complainant in relation to matters which the Respondent submits came to light in the course of a routine audit: (i) that he had dropped thirteen calls between 21 November and 9 December 2016; and (ii) that he had conducted an unauthorised transaction with a customer in early December 2016. Ms Kondor issued her final report on 2 February 2017.

A disciplinary hearing was held on 7 and 8 February 2017. It was conducted by Mr Mίcheal Lombard. The Complainant was not accompanied at the disciplinary meeting, although he was afforded the opportunity to bring a work colleague with him. The allegations against the Complainant were:

• “Inappropriate and unprofessional behaviour towards RCI members;

  Dropped/unanswered calls;

  The processing of an unauthorised transaction without the member’s approval.”

The Complainant appealed Mr Lombard’s decision. The appeal was heard by Mr Zareen Aziz-Laird on 26 February 2017. The appeal was unsuccessful and Mr Aziz-Laird confirmed the decision to dismissal the Complainant.

Evidence of Mr Mίcheal Lombard.

The witness told the Court about the various roles he has held with the Respondent since 2003. He is currently Director of Member Services for Europe. He said he had conducted approximately forty disciplinary hearings and appeals in his role as a manager. The witness confirmed that he had conducted a disciplinary appeal involving the Complainant in May 2016.

Mr Lombard gave an account to the Court about how he conducted thedisciplinaryhearing that gave rise to the within proceedings. He said he had scheduled the Complainant’s disciplinary hearing for 4.00 pm on 7 February 2017. The Complainant, according to the witness, was very agitated when he arrived for the hearing. The witness asked him if he wished to be accompanied by a colleague but the Complainant declined and then started to remonstrate about the accuracy of the translation of an email that was material to the disciplinary hearing before leaving the room abruptly.

The witness said that he sent an email invitation to the Complainant at 8.00 am on the following morning, 8 February 2017, inviting him to a resumed disciplinary hearing at 10.00 am that morning. When the hearing resumed, the Complainant again attended alone and confirmed that he didn’t wish to avail himself of the right to be accompanied by a work colleague. Mr Lombard recounted how he had taken the Complainant through each of the three allegations that had been raised against him and summarised the Complainant’s responses to them. According to the witness, the Complainant added nothing new to his defence in relation to any of the three allegations and, therefore, the meeting concluded at approximately 10.20 am. Mr Lombard said that he had told the Complainant he would deliberate on what he had heard and would advise him of the outcome later that afternoon. In answer to a question from the Court, the witness accepted that he had not expressly advised the Complainant, at any stage, of the potential outcomes from the process.

According to the witness, he considered a range of possible alternative sanctions, short of dismissal, including suspension without pay. However, he says, he was aware of the final written warning that was already in place and, therefore, because of the gravity of the current allegations he ultimately decided that dismissal was the most appropriate sanction to impose on the Complainant. The witness then met with the Complainant, at approximately 2.30 pm, to his recollection, later that day and communicated his decision verbally which he said he would confirm in writing. He asked the Complainant to leave the building there and then because he didn’t want him to return to his desk, to have to deal with customers on the telephone.

The Complainant’s Submissions

The Complainant submits that the nature of his job changed from about October 2016 onwards as the emphasis of the Respondent’s business shifted from a sales-driven focus and more towards customer care. The Complainant says he was required at this time to take on duties previously performed by a separate Customer Care Department and this led to an increase in his workload and also to his being asked to perform non-sales tasks which were not his main strength. He submits that this increased workload was a factor which led to the events that prompted the disciplinary investigation.

The Complainant outlined his position in relation to the two phone calls of 7 December 2016 as follows. He says that the customer on the first call was angry with him because he claimed to have been misled on a previous phone call by a colleague of the Complainant. Despite the Complainant’s best efforts to calm the caller down, the caller swore at him and told him to “go f*** off”. It appears that this call had been randomly recorded by the Respondent’s systems. However, the Complainant objected to the multiple versions of the transcript that were subsequently produced to him as he deemed each version of the translation to be inadequate and because none of them reproduced the part of the conversation in which the Complainant had been subject to provocation as that part of the phone call was deemed indistinct and unclear.

The Complainant places some emphasis on the fact that neither of the customers that he allegedly offended on 7 December 2016 made a complaint against him and were never interviewed as part of the disciplinary process. Furthermore, the Complainant also submits that the Respondent’s enquiries in relation to the alleged ‘unauthorised transaction’ imputed to the Complainant in early December 2016 was also deficient in so far as the Respondent appeared to rely entirely on the translation of an email from the customer concerned without making any effort to contact the customer directly following receipt of the email. The Complainant also submits that no recording of the phone call that took place between him and this customer was ever produced to him.

The Complainant submits that there was a procedural impropriety in the manner in which the investigation against him was conducted by Ms Kondor arising, in particular, from the decision to add additional allegations to the original two allegations which had been raised at the outset of the investigation.

Complainant’s Financial Loss

The Complainant gave evidence in relation to his loss and his efforts to mitigate loss following his dismissal. He told the Court that he was without work for approximately a year and two months until he commenced employment again in April 2018, on a salary of €20,000.00. The Complainant produced copies for the Court of a representative selection of the written applications he had made to employers in England, Ireland and Scotland during the period he remained unemployed. The Court is satisfied that these are indicative of ongoing and reasonable efforts on the Complainant’s part, throughout the period in question, to secure alternative employment. The Complainant also informed the Court that he been unwell for approximately three weeks in that period.

Discussion and Decision

The report produced by Ms Dorney and Ms Kondor at the conclusion of the investigation conducted by them under the Respondent’s Disciplinary Policy concluded as follows:

• 
  “Based on the evidence gathered during the course of the investigation and the findings of fact made above, the following conclusion has been reached: In summary, in reference to RCI’s ‘Disciplinary Procedure’ policy and RCI’s Code of Conduct policy, misconduct and serious misconduct took place by [the Complainant] on the following occasions:
  • 
    •07^thDecember 2016

    •During the period 21^stNovember 2016 – 09^thDecember 2016

    •13^thDecember 20162.”

Mr Des Ryan BL at para 13.72 ofRedmond on Dismssal Law(3^rdEd., Bloomsbury Professional, 2017) states:

• “Heavy emphasis has been laid in recent case law on the duty on an employer to set out clearly allegations made against an employee from the outset, with the employer not being permitted to augment the allegations as the investigation progresses. This is because an employee is entitled to be informed at the outset of the complaint(s) being made against him or her in order to ensure he or she has a meaningful opportunity to prepare and present his or her defence.”

In addition to this, the Court is not satisfied that Mr Lombard could have given sufficient consideration to the allegations and the findings made following the investigation stage, such as to justify his decision to dismiss the Complainant with pay in lieu of notice, in circumstances where the disciplinary hearing lasted barely twenty minutes and Mr Lombard was in a position to communicate that decision just over three hours later. Having considered Mr Lombard’s evidence to the Court in relation to how he arrived at his decision to dismiss the Complainant, the Court is not confident that he gave sufficient consideration to imposing any lesser sanction on the Complainant.

It is also of some concern to the Court that both the lead investigator (Ms Kondor) and the manager who conducted the disciplinary hearing (Mr Lombard) in this case had previously been involved at different stages of other disciplinary proceedings concerning the Complainant.

In all the circumstances, and having regard to the foregoing, the Court finds that the Complainant was unfairly dismissed. The Court – having regard to the Complainant’s financial loss and his significant efforts to mitigate that loss -measures the appropriate redress to be compensation of €20,000.00.

The appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
14 January 2020______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.