Complainant

Respondent

Anonymised Parties

Operations Manager

Healthcare Organisation

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-00026442-001

21/02/2019

The Complainant commenced employment in May 2007 as Operations Manager as part of the Senior Management team. The Complainant was dismissed on 1 November 2018.

The Complainant worked with the company without issue for 10 years approximately. The Complainant was out of work with related stress for 6 weeks in August 2016.

On 2 June 2017 a Performance Improvement Plan was imposed due to the Strategic Plan in respect to a project not being completed on time.

On 22 June 2017 a Workplace Intervention/Mediation was carried out between the General Manager, his Manager and the Complainant to try to resolve matters. The General Manager went on holidays on 26 June 2017 for 2 weeks.

In July 2017 the Facilitator met both the Complainant, the General Manager. HR was involved in this process.  The Performance Improvement Plan which was previously imposed on 2 June 2017 was lifted by the General Manager on 11 August 2017 as the strategic plan was submitted 14 July 2017.

In July 2017 there was interaction between SIPTU and the Chair in relation to the Complainants issues anonymously. The Complainant was written to on 15 September 2017 by the HR Manager asking him to bring his formal grievance within the correct process and procedures within 10 days. The Complainant did not submit a formal grievance at that stage. The Respondent deemed the allegations so serious that they caused threat to the Organisation that the allegations had to be investigated due to allegations of misuse of funds raised. The Complainant was suspended on 9 October 2017 by the General Manager for the disciplinary investigation to commence.

The Complainant submitted a grievance on 26 October 2017.

On the 7 November 2017 an Investigator was appointed. Under the Terms of Reference the Investigator investigated the Company’s disciplinary allegation and his grievance. A draft report was provided in July 2018 and the final Investigation report was received on 28 August 2018. The delay was due to the Investigator’s illness.

The CEO of a similar organisation completed the outcome stage. He was appointed on 10 September 2018. The Outcome Manager’s role was to decide if the allegations warranted disciplinary and if so what sanction. The Outcome Manager met the Complainant and the Complainant was dismissed on 1 November 2019. No appeal occurred due to genuine misunderstanding of parties in reference to a WRC appeal.

The Complainant states that he has been dismissed for raising grievances, for making protected disclosures and for trade union membership and activity.  The Complainant states that that purported dismissal is unlawful, having regard to the Complainants’ constitutional, statutory and contractual rights. 

The Complainant states he has performed his duties for the Respondent diligently and to an exceptionally high standard since the commencement of his employment with the Respondent in 2007. He has made an enormous contribution to the success of the Respondents business in spite of the Respondents failure to adequately support him in his role during his employment.

The Complainant states that the General Manager of the Respondent, has a long history of mistreating employees in the organisation. Her management of employees involves bullying behaviour such as shouting, isolation, setting unachievable targets and misuse of company procedures. The General Manager’s behaviour has led to unsustainably high staff turnover, litigation threats and, in some cases, financial settlements with employees who have been forced to leave the Respondents employment. The Complainant states he witnessed this behaviour when it was targeted at other employees and he sought to support the employees who were impacted by it. The Complainant states he became a strong defender of the employees of the organisation.

The Complainant states he was required to work excessively long hours in order to maintain the operations of the company, in part because the General Manager’s behaviour led to regular departures of staff for which the Complainant as Operations Manager had to compensate.

The Complainant states because the Complainant worked so hard to ameliorate the negative effects of the General Manger’s unlawful behaviour, the General Manager began to direct her unlawful behaviour towards him. The Complainant states that from approximately 2016 the General Manager began to withdraw work supports and to isolate the Complainant from his colleagues. The General Manger alternated between wild swings of behaviour, from refusing to speak to him at all to shouting at him. The Complainant states that the General Manager insisted that the Complainant attend off-site academic management courses for several days a month at a time when the pressures of his work were already extraordinarily high. The Complainant states the GM removed supports adding to the Complainant’s unmanageable workload.

The Complainant states the General Manager insisted that he prepare a document – which initially was to be a project, but was later described as a “strategic project” or simply “the project plan” – for the part of the Respondents business for which he was responsible, namely Operations. None of his peers (who are the managers in other areas were required to complete any similar document. It was evident from the General Manager’s behaviour that her objective was to force the Complainant to resign from his employment (as done by her to previous employees).  On two separate occasions, because of the unbearable pressure under which he had been forced to work, the Complainant states he offered to resign as that was clearly the General Manager’s objective. The Complainant states that the General Manager would not acknowledge that his resignation was her objective.

In August 2016 the Complainant suffered a breakdown because of the pressures of his work and the lack of support. He found himself completely overwhelmed, suffering insomnia and panic attacks.  He was certified sick for 6 weeks. The Complainant had had numerous stressful jobs in the past but had never experienced treatment of this nature in the workplace. 

The Complainant states on 9.05am on the morning of his return from sick leave, the General Manager subjected him to a two-hour tirade of personalised abuse in her office, matters that led to his unlawful suspension by the Respondent.

From about April 2017 the General Manager refused to interact with the Complainant at all except when it was completely unavoidable for her to do so. The Complainant states that when she did speak with him she often behaved abusively, including by shouting at and demeaning the Complainant.

In April 2017 the Complainant and three other managers joined SIPTU and asked SIPTU to represent them in respect of the General Manager’s inappropriate behaviour. As the GM is the most senior executive in the Healthcare Organisation the appropriate level for SIPTU to raise his grievance and protected disclosures was the board of directors of the Company.  The Complainant understands that his SIPTU representative, made contact with the chairman on behalf of the Managers, and raised the grievances and protected disclosures that he and the other managers wished to raise.

The grievances that the Complainant has raised in April 2017 and repeatedly since that time relate to the grossly inappropriate manner in which the General Manager treated him and the manner in which his workload was increased, as described in his letter.

The protected disclosures that the Complainant has raised were disclosures of information that in his reasonable belief tended to show the following relevant wrongdoings.

a)       That the Respondent was failing to comply with legal obligations to its employees (other than the Complainant) within the meaning of section 5(3)(b) of the Protected Disclosures Act 2014 in respect of the General Manager’s treatment of a range of employees.

b)      That the Respondent was endangering the health and safety of its employees within the meaning of section 5(3)(d) of the Protected Disclosures Act 2014 in respect of the severely negative effect of the General Manager’s behaviour on the health of employees (including the Complainant). 

c)       That improper use of public money had occurred within the meaning of section 5(3)(f) of the Protected Disclosures Act 2014, namely the public money that had been provided to the Respondent by the HSE was improperly used to make settlements with employees of the Respondent.

As a result of the Complainant (through SIPTU with other Managers) raising his grievances and protected disclosures with directors of the company the Complainant states that the General Manager commenced a campaign of victimisation of the Complainant.  This letter relates only to the treatment directed at the Complainant, though other managers have also been subjected to similar victimisation.

On 6 June 2017 the General Manager placed the Complainant on a performance improvement plan because he had not produced the strategic project plan that the General Manager had demanded. The reason why the Complainant had not produced the plan was because of

a)       the heavy workload under which the General Manager had placed the Complainant and

b)      the fact that the General Manager had insisted that the Complainant spend several days per month away from the office at an academic course.

The Complainant had continued to discharge all of his responsibilities as Operations Manager notwithstanding those acute pressures. Placing the Complainant on a performance improvement plan was entirely unjustified. The Complainant states this was victimisation for raising grievances and protected disclosures; for joining SIPTU and for having SIPTU raise his concerns with directors of the company.

On 16 June 2017 the Complainant experienced another incident of the General Manager shouting at him. This occurred at the end of a meeting and after the General Manager had asked the other participants in the meeting to leave the room. In response to her behaviour, the Complainant explained that he felt uncomfortable about the way the General Manager was treating him and that he was no longer comfortable meeting her alone.

On 17 June 2017, an external HR consultant working for the Respondent, contacted the Complainant to say that the Respondent, was very worried about his reaction to her behaviour.  On 19 June 2017 the HR consultant contacted the Complainant to say that the General Manager was “coming for” the Complainant. The HR consultant said that he would try to get "a few bob" for the Complainant, meaning a termination package.  The Complainant made clear that he did not want a termination package.  The Complainant wanted to continue the job that he had done for ten years, but he wanted to do that job in an atmosphere of mutual respect and professionalism.

The Complainant states that it is clear from the HR consultant’s comments that, not later than June 2017, the General Manager had decided to procure the dismissal of the Complainant. The Complainant states that the General Manager never applied fair procedures (or any procedures) in advance of making that decision. The Complainant states that the processes that subsequently applied to purportedly justify the Complainants’ dismissal were a sham designed to achieve that pre-determined outcome.

The HR advisor asked the Complainant if he would attend mediation with the General Manager.  The Complainant readily agreed. Mediation (facilitated by the HR consultant) was arranged for 22 June 2017. The Complainant attended the mediation in a spirit of openness and honesty. This is evident from the speaking notes that the Complainant used as the basis for his opening contribution to the mediation meeting. The Complainant set out his commitment to the organisation and his gratitude to the General Manager for giving him the opportunity to work for the Respondent.  He set out in practical terms his concerns about her increasingly authoritarian and coercive management style and the negative effect this style was having on him, on other members of staff (past and present) and the company.  He supported his concerns with specific examples.  He acknowledged matters where he needed to improve (specifically the completion of the strategic plan). His language was firm but measured and constructive.  The Complainant states that the General Manager’s response at the mediation session was bizarre and intimidating.  For a long period of time, she sat staring into space, refusing to interact either with the Complainant or the mediator HR consultant. She did not react to several attempts by the HR consultant to encourage her to engage with the mediation.  Eventually the HR consultant asked her if she would like a break, and she took a break.  She returned after her break and spoke at length about her own workload and contribution to the Respondents business, but did not address a single point that the Complainant had raised. The mediation ended.

On 14 July 2017 the Complainant presented his project plan.  On 11 August 2017 the performance improvement plan that the General Manager had imposed on him was lifted.

In September, the HR manager, wrote to the Complainant instructing him to put any grievance that he had in writing. The Complainant preferred to leave the matter in the hands of his trade union, and his SIPTU representative sought another meeting with the chairman in or about late August 2017. On 6 September 2017 the chairman wrote to the Complainant’s SIPTU representative and indicated that he had nothing to do with industrial relations and that he would not be available to assist in respect of this matter.

On 9 October 2017 the General Manager wrote to the Complainant to suspend him from his employment pending an investigation into him. The Complainant stated that the matters set out in the General Manager’s letter would not merit an investigation of any type, let alone an investigation during which he would be suspended. The General Manager’s letter purportedly set out 18 matters to be investigated.  The Complainant stated that in reality many of those matters are restatements of the same matter. The repetitive items at section 8 of the General Manager’s letter boil down to the following core allegations.

·         That the Complainant would be investigated for raising grievances and protected disclosures and for not proceeding with them in a manner dictated by the General Manager and HR but instead raising them with several directors. The Complainant stated that these allegations were unjustified.  The Complainant had every right to raise his grievance and outline his protected disclosures to appropriate senior officers of the company, including company directors and medical directors. 

·         That the Complainant would be investigated because he was being represented by SIPTU in this matter. The Complainant stated that these allegations were baseless.  The Complainant had every right to join SIPTU; to be represented by SIPTU; to explain his concerns to SIPTU; and to have SIPTU raise those concerns with appropriate officers of the company, including the Chairman.

·         That the Complainant would be investigated in respect of the strategic plan.  The Complainant stated that this allegation was plainly a fabrication.  The Complainant had already delivered the strategic plan two months prior to the writing of the letter, and the performance improvement plan that had been imposed by the General Manager in respect of the strategic plan had been lifted two months previously. 

The Complainant stated that the fact that the General Manager commenced an investigation based on allegations that manifestly did not merit investigation is clear evidence of her continued intention to procure the dismissal of the Complainant. In the same letter the General Manager suspended the Complainant. The Complainant stated that the legal requirements for an employer who intends to suspend an employee for the duration of an investigation have been set out clearly by the courts in cases such as Morgan v Trinity College Dublin [2003] 3 IR 157 and Bank of Ireland v Reilly 2015 [IEHC] 241. The Complainant stated that the Respondent did not meet any of the requirements set out by the courts. There was manifestly no need to suspend the Complainant pending an investigation. The Complainant stated that the General Manager’s decision to suspend the Complainant was motivated purely by the intention (expressed four months previously to the HR consultant) to procure the dismissal of the Complainant.

The investigation process commissioned by the Respondent was extraordinarily onerous for the Complainant.  The investigation report comprises 420 pages plus two full folders of appendices. The investigation was not concluded until September 2018. The Complainant was unlawfully suspended for the entre duration of the investigation process.

The outcome of the investigation was that the investigator concluded that the suspension of the Complainant was not compliant with good and recognised practice applicable to the suspension of an employee. In many cases the investigator did not uphold the Complainant’s allegations, largely because of lack of other witness evidence.  In this regard the Complainant states that the investigator failed to give due regard to the compelling direct evidence provided by the Complainant and other witnesses. The investigator expressly determined that the Complainant had not acted in a vexatious manner or maliciously. The investigator made a number of findings that were critical of the Complainant (all of which the Complainant refutes) but nowhere in her findings did the investigator assert that the Complainant had committed misconduct or serious misconduct. The Complainant stated that there was no basis for any disciplinary process at all to have been taken on foot of the investigation report, much less a disciplinary process that could have led to the Complainant’s dismissal.

The General Manager nevertheless procured the Outcome Manager to conduct a disciplinary process in respect of the Complainant on foot of the investigation report.  The Outcome Manager is not an employee or officer of the Respondent.  He is the Chief Executive Officer of a similar but entirely distinct company, based in Galway.  He is a peer and colleague of the General Manager. The Outcome Manager conducted a grossly unfair disciplinary process, as is evident from the letter of purported dismissal. The Complainant stated that the letter of purported dismissal makes it very clear that the reasons why the Outcome Manager believes that the Complainant should be dismissed are that;

·         The Complainant has raised grievances and made protected disclosures and

·         The Complainant was represented by SIPTU in raising those grievances and making those protected disclosures. 

The Outcome Manager’s letter ignored the fact that the investigation report had unambiguously determined that the Complainant had not been vexatious or malicious in raising his grievances and disclosures.

The Outcome Manager expressed the view that the fact that the Complainants’ allegations had not been proven was sufficient ground for dismissing the Complainant.  This view is entirely at odds with the relevant statutory provisions. For example, the Protected Disclosures Act 2014 protects disclosures by a person who has a reasonable belief that the information he or she has disclosed tends to show that a relevant wrongdoing has occurred. Protection is not limited to disclosures that are subsequently proven.  The Complainant stated that in this case, the reason why the Complainant allegations were not upheld was largely because the culture of fear and intimidation created by the General Manager has created a circumstance in which witnesses are afraid to speak out. This fear is well justified given the Respondents treatment of the Complainant in this case.

The Outcome Manager’s letter contains number of gross distortions, exaggerations and factual inaccuracies. Of which the following are merely some of the most egregious examples.

·         The Outcome Manager regards the fact that the Complainant’s representation through SIPTU’s Workers’ Rights Centre was in some way a breach of confidentiality.  It was not.  The Workers’ Rights Centre is a section of SIPTU that offers specialist support to SIPTU members who most need it.  To accuse someone of misconduct for consulting SIPTU’s Workers’ Rights Centre is to accuse that person of misconduct for being represented by SIPTU.  Trade union officials are expressly authorised to receive confidential information, by means of protected disclosures, under section 9 of the Protected Disclosures Act 2014.

·         The Outcome Manager’s proposal to dismiss the Complainant was informed by the Outcome Manager’s (frequently repeated) assertion that SIPTU had not behaved to the Outcome Manager’s satisfaction during the investigation and disciplinary process. There is no basis for dismissing an employee merely because an employer does not like the approach taken by the employee’s trade union. Dismissal of an employee for trade union membership or activity is an unfair dismissal further to section 6 of the Unfair Dismissals Act 1977.

·         The Outcome Manager expressed unsubstantiated, inaccurate and exaggerated opinions in the effects of the Complainant’s grievances and disclosures.  For example, the Outcome Manager adverted to the alleged "catastrophic effect the raising of unsubstantiated allegations against the General Manager personally, the Respondent as an organisation, the Board, its auditors and solicitors has had on both the General Manager personally and the organisation."  There is no evidence of any of these people suffering any catastrophe. The Complainant stated that the only person who has suffered catastrophic consequences is the Complainant, who has been summarily dismissed.  Grossly exaggerated statements such as these demonstrate the extent of the Outcome Manager’s prejudice in his approach to this matter.

The exaggeration that is evident in the Outcome Manager’s letter does not disguise – and only serves to emphasise – the fact that the Complainant is being dismissed for two simple reasons.  The first is that he raised grievances and protected disclosures in good faith. The second was represented by his trade union in pursuing these matters. As is evident from the forgoing, the General Manager predetermined a specific course of action, namely that the Complainant should be dismissed.  She unlawfully suspended the Complainant from his employment. The Respondent has now purportedly dismissed the Complainant from his employment based on an investigation report that did not find the Complainant to have committed misconduct (much less serious misconduct).

The Complainant was not afforded the right to appeal his dismissal which is also unlawful.

Cross Examination occurred by the Complainants representative. The Complainant stated he felt that the breach of confidentiality reference to the allegations about misappropriation of funds which was unsubstantiated. The Complainant agreed to attend mediation with the Company CEO but the CEO did not engage in the process.

With reference to the evidence the Outcome Manager could not present details of the confidentiality agreement signed off as employees sign confidentiality agreement. He didn’t explore this himself just asked the Complainant to present own evidence.

With reference to whom the Complainant should have gone to with his grievance. He stated he was the next more senior person after the CEO so he only went to the Board.  The Policy does not say who to go to so he said he felt that was a grey area.  The process was expected to go to the Accountant prior to the Outcome Manager to decide if the process was warranted to proceed to disciplinary.  However, the Outcome Manager did the one role in this case. He wasn’t aware that 9 months later he was mentioned in the report. With reference to the Policy in use and the Handbook used this was noted by the Investigator.

The Outcome Manager met the General Manager to hear her side of the story and wanted to hear his side of the story and from his meeting with her she said she couldn’t work with him and he placed some weight on this. The Complainant representative asked the Outcome Manager why did he meet the General Manger after the Complainant’s disciplinary meeting. Did he ask with reference to the dismissal could they work together. As per his letter he said he had. It was confirmed that the Complainant was suspended for 12 months.  The Outcome Manager found this to be a long time and unusual but didn’t consider that in the outcome. It was confirmed the Outcome Manager was not involved or contacted in any way prior to the letter of 10 September 2018. The Outcome Manager stated he did not go back to the Organisation to check for any evidence he just gave the Complainant the opportunity to present his evidence for example he did not ask was the Complainant paid money to leave which is one of the allegations.

The Complainant gave his evidence. He confirmed he commenced employment in May 2007 as an Operations Manager with the organisation.  His relationship with his General Manager was good. Up to mid-2016 the General Manager said his work and attitude changed.  He stated he went on a 3 day a month course with the HR Manager.  He stated two key management people left the company and one of his supervisors took time off also.  As a result of this he found himself doing a number of other people’s jobs and by August 2016 he was overwhelmed by work.  He took time out of course to focus on work. The Complainant asked the General Manager for help and she just said get on with it.  He was overwhelmed and took 6 weeks off due to stress in August 2016. The Complainant stated he had a lot of work on and the strategic plan was one of many other projects he had to do.   He was put on Performance Improvement Plan as he didn’t produce the strategic plan by the specific date. The Complainant stated the mediation process he was involved in was to be an open space to discuss issues both himself and the General Manager had.  He felt it was very rushed and the HR Manager was to be involved also which he wasn’t happy about, however, it went ahead. The Complainant felt he fully co-operated with the investigation.  He stated he participated fully in the outcome process.

The Respondent confirmed the Complainant commenced employment with the Healthcare Organisation on 14 May 2007 as Operations Manager.

The Respondent stated that during the course of 2017 due to ongoing chronic poor performance the Complainant was issued with a Performance Improvement Plan by his Manager. Following this the Complainant made a series of allegations against the organisation and his Manager. Following a protracted period of time and correspondence and having repeatedly failed to submit his allegations in line with the Respondents Grievance Policy and Procedure the Complainant was suspended from work, in accordance with procedure, on full pay pending a full external and independent investigation into his grievance. 

The Respondent states that following the external independent investigation, none of the Complainant’s grievances were upheld. The Complainant did not appeal the report findings.   In line with agreed policies and procedures as outlined in the employee handbook an independent disciplinary panel was convened in order to consider the findings of the external independent investigation report. The Complainant fully participated and made submissions to the independent disciplinary panel. The findings of the independent disciplinary panel were that the Complainant breached disciplinary procedures, by bringing the organisation and the General Manager into disrepute, breach of confidentiality and behaving in a manner over a protracted period of time that caused a fundamental breakdown in the organisation’s confidence and trust in him. The independent disciplinary panel was of the view that the Complainant’s position in the organisation was untenable and having considered the range of sanctions available to it, deemed dismissal to be the appropriate sanction in this instance.

The Respondent states that the Complainant was represented by SIPTU at all times throughout the process. The Respondent states that they followed full and proper and agreed industrial relations procedures at all stages throughout this process.  The Respondent states that they fully contest in the strongest possible terms all of the allegations made by the Complainant and will provide extensive and corroboratory evidence to refute all allegations.

Evidence was given by the General Manager.  The General Manager confirmed the Complainant’s role was the Operations Manager of all non-clinical management. The Complainant’s performance up to 2016 was satisfactory. The General Manager stated there was a gradual dis-improvement of his performance since then. The General Manager stated she communicated the level of detail required in a business plan like documents including details costing and he was required to prepare this information. She stated she tried to assist the Complainant with the preparation of this plan.  She stated that the Complainant had the opportunity of professional coaching and training. She stated she also relieved him of some tasks to allow him to focus on strategic plans and achieve the required deadlines.  She felt they were not making progress and deadlines were not met. At that stage she said she would be putting Performance Improvement Plan in place and would involve HR in that process. A letter was sent to the Complainant on 6 June 2017 to confirm this. The General Manager stated that the Complainant was angry about receiving this letter and said he would get advice about it.  She encouraged him to do so. The General Manager stated their relationship deteriorated after this.  They held weekly Performance Improvement Plan meetings with the Complainant and HR would chair these meetings when she was on holidays.

 On 16 June 2017 the General Manager met the Complainant and stated he got angry at that meeting and he withdrew from the meeting.  She was concerned that she had a Senior Manager not performing or communicating so she got an external person to do an intervention to try and get things back on track.

On 22 June 2017 all parties met.  During this meeting, which was facilitated by the external person, the Complainant raised a number of criticisms about the General Manager’s management style. The General Manager also agreed to withdraw two other items on the Performance Improvement Plan and said she’d withdraw Performance Improvement Plan fully if he did the treatment plan to 95% standard within 30 days.  The General Manager went on holidays a week later.  On 10 July 2017 on the General Manager’s return from holidays while she was with the HR Manager the Complainant came into the office and said he had spoken to the Medical Directors while she was away. The General Manager stated she was shocked about this.  On 14 July 2017 the General Manager was at a Strategy Meeting and that day she received a call at lunch from the Chair of the Board to say that he had received a SIPTU letter saying that there were issues regarding misuse of tax payer’s money. The Chair of the Board confirmed he was going to contact the Company Secretary to advise what to do.  On 29 August 2017 the Chair confirmed the internal grievance procedure should be used via letter to the Complainant’s SIPTU representative.  The General Manager was told that the employee with the grievance was the Complainant.  It was the 26 October before he submitted his grievance. 

Cross examination occurred by the Complainant’s representative. Prior to the mediation process there was no issues with the Complainant until May onwards. In May 2016 the General Manager noticed a deterioration of his performance the most significant being related to June 2017 with reference to Performance Improvement Plan due to strategic plan not being completed on time and done. As the Complainant allegedly stormed out of a meeting due to this Performance Improvement Plan the General Manager felt she needed assistance from a Mediator to help get the parties back around the table i.e. herself and the Complainant back on track and to progress with the key project of work i.e. the strategic plan.  There were three items on the Performance Improvement Plan and in good faith she lifted two of the tasks and left the Complainant to focus on the key priority of the treatment plan alone.  She felt she had done everything she could to try to make progress.  The General Manager lifted the Performance Improvement Plan on 11 August 2017 in good faith as she felt they were on the path to get there but was work in progress.  A management meeting was held on 14 July 2017 where the Complainant presented his strategic plan which showed progress.  The General Manager stated she felt he had dis-improved in September again though and was no longer on track. The Investigator found that the General Manager did not engage fully in the mediation reference Performance Improvement Plan – she denies this and feels she did engage fully.  The Complainant made allegations during June to a number of representatives within the organisation to say that the company had paid off employees and there was misuse of company funds. The allegations were initially made by SIPTU without naming the Complainant, however, subsequent to this the Complainant said he spoke to Senior Directors to make grievances that would take on a life of their own. This was outside of normal procedures. The General Manager stated she considered the allegations as gross misconduct and they were circulating for some time and he wasn’t using the normal procedure to address his grievance so he was suspended to have the allegations investigated as they were deemed to be gross misconduct. The Complainant’s suspension continued after the investigation as the Investigators findings were indicating gross misconduct the General Manager believed. However, the Investigator stated that they were not malicious or vexatious. The General Manager felt it was not appropriate for the person to return to work based on the investigation. She did not make that decision as it was not within her responsibility to allow the suspension to continue as she was involved as subject of the complaint. There was proof that the Complainant’s uncle contacted a member of the Board and in turn breached confidentiality and she said one of the Board told her that the Uncle was in touch with reference to misuse of funds allegation which would be subject to protected disclosure.

Evidence by the Respondent was given and the witness was the HR Manager. The HR Manager confirmed she has been with the company since 2015 as HR Manager. The HR Manager stated that the Complainant was present when an incident occurred on the day the General Manager returned from annual leave on 10 July 2017. The HR Manager stated they were having a meeting at the time which included the General Manager, HR Manager and the Complainant interrupted the meeting and said he was talking to the Medical Directors and there was more to come.  He was pointing his finger aggressively and firm.  The HR Manager asked him to come in and he didn’t so the interaction ended. The HR Manager wrote to the Complainant on 15 September 2017 to ask him was there any matters that needed investigation and if so to confirm same by 25 September 2017 as he was engaging with a number of parties within the organisation but they were not correct parties nor was it following company procedure. The Complainant did not put in a formal grievance at that stage. The Complainant was suspended on 9 October 2017 by the General Manager. The General Manager wasn’t junior to the Complainant.  They were both Senior Managers.  She was the correct person to bring the complaint to. The HR Manager’s role was to co-ordinate the process and parties involved. She had no involvement outside of this. The investigation took some time due to the fact there were two Terms of Reference involved.  The Investigators availability was an issue but she was appointed on 7 November 2017.  She was also on sick leave in August/September.  The Respondent expressed concern to the Investigator about the delay.  It was a robust investigation with a number of witnesses etc.   A draft report was provided in July 2018.  Final report was provided on 28 August 2018. The Investigator forwarded the final report to the person appointed – she appointed him to review the document to decide if disciplinary was warranted and if the outcome was appropriate. The Policy outlined who the potential Outcome Manager would be so she chose the person appropriately. There was no disciplinary panel. It was a one person disciplinary chair that conducted the process. The HR Manager didn’t decide if it was disciplinary or not, she appointed a CEO of a similar business to decide this and to decide if it warranted disciplinary.

The Complainant was cross examined by the Respondents representative. The representative stated the Complainant was part of the Senior Management team in the organisation.  The General Manager was his Manager. The representative stated the Complainant dealt with disciplinary staff in his role but HR led it out. The representative stated that the treatment plan strategy was an important piece of work but it was one of many projects. The representative stated the Complainant wasn’t happy to be put on Performance Improvement Plan by his Manager which occurred 2 June 2017. The representative stated the Complainant attended mediation on 22 June 2017 with the General Manager and facilitator. The representative stated there was agreement that the strategic plan would be addressed and the Performance Improvement Plan would be then lifted.  The representative stated the Complainant said that the General Manager didn’t engage in this process.  He outlined his issues and he felt she didn’t engage.   At the end of the meeting they shook hands, however, she hadn’t addressed any of his issues that he raised; she didn’t even address one issue. The General Manager went on holidays for 2 weeks from 26 June 2017. The representative stated that while the General Manager was on holiday the Complainant spoke to members of Directors. 

On 10 July 2017 when the General Manager returned from holidays the Complainant went into the General Manager’s office where the HR Manager was present to say he spoke to the members of Directors.   He wanted the HR Manager to be present as a witness when he met the General Manager in June and when he left the meeting he said he wouldn’t meet her alone again. The representative stated the Complainant said he told the General Manager that he spoke to the Medical Directors about her behaviour that was his recollection of the meeting.  The representative stated the Complainant said the reason he told her that is that one of the Medical Directors asked was it OK for them to tell the General Manager and he said he would tell her himself. The representative stated the Complainant said he spoke to the Director’s on a weekly basis, and he didn’t go to them specifically with the issues reference the General Manager.  Instead he spoke to them about it as part of his role and normal communication.  The Complainant stated he was saying that the General Manager’s behaviour was what he raised to the directors.  He specifically said he and others had issues with the General Manager’s behaviour. The Complainant stated he is familiar with the company’s grievance and disciplinary procedures. The normal process was to invoke grievance procedure.  The HR Manager reported to the General Manager so he didn’t feel that was the appropriate person if was not his Line Manager.  He felt as the board was where the General Manager reported to, therefore it was acceptable to do so.   He also felt at that stage there was a number of employers that had issues with the General Manager.  The representative stated the Complainant spoke to the Medical Directors while the General Manager was on holiday – approximately 26 June 2017. SIPTU wrote a letter on behalf of anonymous staff to say they had issues with the General Manger.  The Complainant stated that was not done by him. There were other employers that had issues too. The representative stated the Complainant said he never made an allegation that there was misuse of tax payer’s money. The Respondent said this is the first time he has said that and didn’t say it during the investigation.  He accepts making allegations of misuse of company money is a serious allegation to make. At the SIPTU meeting with the Chair of the Board they stated they didn’t mention the Complainant specifically.

On 15 September 2017 the company summarised the steps taken to-date reference matters including SIPTU’s letter anonymously received; meeting with the General Manager and Mediator; SIPTU meeting with Chair of Board to conclude that they asked him to give his grievance to the company formally.  The representative stated the Complainant acknowledged he said he wouldn’t be paid off by the General Manager using public funds.  The representative stated the Complainant said that SIPTU acted on behalf of a number of staff members who had concerns not just him.

Section 6(1) of the Unfair Dismissals Act 1977 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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The respondent has referred to Section 6(4)(a) of the 1977 Act which 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 capability, competence of qualifications of the employee for performing work of the kind he was employed by the employer to do.”

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as

 “it is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at the time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged.”

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations (and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969) as follows:

“It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Also, Bunyan v United Dominions Trust (1982) ILRM 404 states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

In this case I find it was not reasonable to have the General Manager suspend the employee as he had raised an issue with her and it was clear their relationship was very poor at that stage.  He was suspended to have his allegations that he did not raise via the correct channels investigated.  His allegations were of a very serious nature, however, I find the reason for his suspension to be unwarranted and suspension was a very serious step to undertake for a senior employee based on the matter to be investigated.  I also find it unreasonable for the Outcome Manager to have not taken into account that the Investigation Manager found his actions not be malicious. I also find it unreasonable that the Outcome Manager met the General Manager during his part of the process as she was the most senior person in the organisation and was in a comparable role to him in a similar organisation. I feel this duly influenced his decision and as a result the separation of processes required didn’t occur.

It is also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her “submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” I note that “Procedural defects will not make a dismissal automatically unfair as an employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee. I will consider this also.

Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases considering the bar that constitutes gross misconduct and dismissal is a high one.

A summary of the case given by the Respondent stated the Complainant was dismissed due to gross misconduct, due to making damaging allegations with no basis and to inflict embarrassment to the Organisation and disrepute also. The Respondent accepts they dismissed the Complainant and therefore they have responsibility and burden of proof to show that the dismissal which occurred was not unfair.

Evidence was given by the CEO of the Healthcare Association who was the Outcome Manager and who dismissed the Complainant.  The Outcome Manager was asked by the HR Manager to consider the disciplinary process and to see if the disciplinary process should be invoked and if he did, he had power to invoke disciplinary up to and including dismissal. The Respondent referred to the Organisation’s submission which included a letter to confirm his role and scope. The Outcome Manager was sent the Investigation Report which was carried out by an Independent HR Consultant. He then reviewed the same and outlined areas/and allegations that he felt warranted disciplinary to the Complainant. The Disciplinary meeting was scheduled for 2 October 2018. The Outcome Manager met with the General Manager and the Complainant on the same day.  He stated no issue with reference to his authority was raised during the meeting. The Outcome Manager asked a number of questions after he gave his evidence.  He particularly asked for evidence for his unsubstantiated claims but he did not present any. He reported that Performance Improvement Plan commenced and he noted that allegations were raised after that. He asked could the Complainant work with the person after making these serious allegations about them and he said yes he could.  He was surprised in reference to this.

The Outcome Manager took time after the meeting to consider the evidence, 3 weeks prior to sending outcome letter on 1 November 2019.  He felt the relationship was broken down so much that dismissal was the correct outcome. This needs to be assessed if this equates to gross misconduct and procedurally if the employee could be dismissed accordingly in line with their policy. I do not question if the relationship had or not.  I question if procedurally this equates to gross misconduct. He stated that if the Complainant had engaged with the correct internal process with his grievance initially the matter would have been resolved and the outcome could have been different.  He felt it was intentional by going to the individual Directors directly rather than going to HR or using the process. The Outcome Manager stated he felt the allegations were investigated and he felt there was no evidence presented.  He was given reasons why it couldn’t be presented but didn’t feel this was sufficient and he stated at no time were these allegations withdrawn.

I have also considered the lengthy time snice the employee was suspended. By the time the disciplinary meeting occurred 12 months had passed. The Disciplinary Outcome Manager felt that the complaints coincided with the Performance Improvement Plan. The Outcome Manager stated his seniority was a factor also as he should know the process involved referencing grievances and it made it more serious due to his seniority.

The Adjudicator has reviewed all evidence available both presented in the submissions and orally at the hearing. To summarise the crux of this case is that the Complainant raised very serious allegations to members of the Board and anonymously via SIPTU initially even though he said that SIPTU’s complaint involved more Complainants than him. As a result of him failing to raise this complaint via the correct procedures the company deemed the allegations so serious they commenced a formal investigation into them. Parallel to this the Complainant then raised them via the grievance procedure. The Complainant was suspended on pay at that stage and remained on suspension until his dismissal. The investigator found his allegations were not upheld, however, also found they were not malicious.

INVESTIGATION FINDINGS

The Investigator said that there was no maliciousness associated with his claims.

The Investigator found that the Complainant made unsubstantiated allegations which were over a protracted time and as a result brought the organisation and General Manager into disrepute. The Investigator found also that the Complainant’s allegations were not vexatious.

Notwithstanding this the Outcome Manager dismissed him as a result of same.

SANCTION

A separate person was appointed as the Outcome Manager to arrive at a decision. 

The Investigator found also that the Complainant’s allegations were not vexatious. The Outcome Manager took a different view to the Investigator in this regard, however, the rationale for same is not clearly substantiated or rationalised.

SUSPENSION

The GM suspended the Complainant by letter on 9 October 2019. This was to allow the investigation to occur. The HR Manager felt that the Complainant was attacking the Organisation from within so suspended him as a result.  He had made serious allegations with reference to misuse of public monies which was very serious.

The suspension letter stated the Complainant had been suspended to give him an opportunity to prepare for the investigation and participate in it.  However, after he did this he remained suspended until his dismissal.

The Complainant’s role has not been replaced and his responsibilities have been absorbed by others.  The organisation is undergoing restricting currently and a number of people’s roles have changed in the last number of years.

The Complainant did not appeal the process.  The Complainant stated the reason he didn’t do that is because the policy 7 process says the appeal process is the WRC.  There was no other internal avenue even thought there was a 10 day opportunity to put the process of appeal in writing per letter of 9 November 2018. This is conflict of understanding between parties which he accepted as such.

Since the Complainant being dismissed on 1 November 2018, he has alleged a loss of €26,000 approximately. The Complainant is trying to secure work via job agencies and recruitment sites and adverts. He is also looking to take up self-employment.  The Complainant stated he thought he had a job in February 2019 but the role was filled by a family member. He has attended many interviews.   The Complainant started work on 23 April 2019.

Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”:

“dismissal”, in relation to an employee, means—

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The respondent has referred to Section 6(4)(b) of the Act which 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.”

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

Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241

In his decision on this case, considering the issue of the response of a reasonable employer, Mr Justice Noonan referred to the case of Allied Irish Banks v Purcell [2012] 23 ELR 189, where Ms Justice Linnane quoted from the findings in British Leyland UK Ltd v Swift [1981] IRLR 91:

“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.

“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.”

As has been established by the EAT in many instances, and specifically in the case of British Leyland UK Ltd v Swift [1981] IRLR 91 which was referred to by Ms Justice Linnane in her decision on the Allied Irish Banks v Purcell case, it is not for me to establish the guilt or innocence of the complainant. 

It is also helpful to consider the High Court appeal of James Reilly against the Bank of Ireland, which was cited by Mr O’Gorman. In his concluding remarks on this case, Mr Justice Noonan observed that:

“An assessment of the reasonableness and proportionality of the employer’s response must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee.”