ADJ-00026053

Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Liz Murray Irish Film Workers Association

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-00032856-001

11/12/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977- 2015 and has submitted that he was unfairly dismissed for alleged gross misconduct (CA-00032856-001)

The Complainant commenced employment with the Respondent on the 30th April 1997. At the time of the Complainants dismissal he was working in the role of Store Manager/Supervisor and earned approximately €52,000.00 (gross) per annum.

The Complainant enjoyed a good working relationship with the Respondent for many years prior to the events that ultimately led to his dismissal.

The Complainant submitted that the statement by the Respondent that the Complainant had become insubordinate, aggressive or disrespectful to the Respondent, its servants, agents or customer is vehemently denied.

Prior to the 16th August 2019 there were no disciplinary warnings on the Complainants employment record. However, there had been a warning on the Complainants file in relation to an incident on the 28th March 2018 but it had expired by the 16th August 2019. The Complainant submitted that this matter was investigated by an external party but noted that the suspension was imposed by the Managing Director (hereinafter referred to as the MD) , the investigation was commissioned by the MD, the disciplinary hearing was conducted by the MD from an original complaint by the Company Director (hereinafter referred to as the CD) of the Respondent Company. The Complainant submitted that this process does not satisfy the principles of natural justice and believes the outcome was pre-ordained and the engaging of an external party to investigate same does not constitute a fair process.

On the 16th August 2019, the Complainant, in his capacity as Stores Manager, took a decision to expedite an order by using the different coloured boxes in which to pack the order. The Complainant accepts the company policy in relation to packing international orders, however as the client was anxious for delivery of the company product he decided to use the different coloured boxes in order to get said product delivered.   The MD latterly noticed that the different coloured boxes were being used and issued instructions to unpack the order and repack and ship the order when the correct coloured boxes arrived.

The Complainant submitted that these instructions were carried out and no damage was caused to the brand as a result of the Complainants initiative and his decision was taken in the best interests of both the business and the customer.

On the 19th August 2019, the Complainant emailed the office manager, copied to the MD,   wherein he questioned the judgement of the MD in the repacking of the aforesaid order but the concerns raised were done so on the basis of his ongoing commitment to customer service. The Complainant denies there was ever any insubordination.

A Supervisors meeting was held on the 19th August 2019 and the Complainant submitted that he refused to initially attend this meeting. The Complainant denies he was disruptive, disrespectful or aggressive towards management at this meeting. The Complainant does accept there was a heated discussion with the MD but this was not unsurprising especially as he believed he was been wrongfully accused and the MD’s conduct contributed significantly to the heated atmosphere. There was an exchange of emails between the Complainant and the Respondent and it is submitted that it would have been more preferable for the MD or Director to speak to the Complainant about the ongoing issues.

A Supervisors meeting was held on the morning of the 20th August 2019. The Complainant denies he refused to attend the meeting but asked to be excused as they were down a person in the Stores and there were orders to be processed. The Complainant accepts he did hand back keys as a form of protest of the behaviour of the CD and further submitted that the CD was escalating the situation with his behaviour, demeanour and inappropriate language.

Ultimately, the Complainant was informed on or about the 23rd August 2019 that he was being suspended from work on full pay to allow an investigation into the aforementioned matters. This investigation was to be carried out by an independent external organisation. The external investigator met with the MD and the Director on the 29th August 2019 for an initial company ‘briefing’ and met with the Complainant and a Manager on the 2nd September 2019. The external investigator provided a report on the 4th September 2019.

The Complainant submitted that he takes issues with said report in a number of areas. The investigation failed to establish of whether the Complainant engaged in disruptive behaviour or that such behaviour negatively impacted on the meeting as alleged. The Complainant further takes issue with the implication that the external investigator was briefed by the MD and the Director of the Respondent Company and this gives rise to a perception of bias. Further, the Complainant submitted that the external investigation was substandard and the principles of natural justice were not followed.

Following receipt of the investigation report, the Complainant attended a disciplinary meeting on the 11th September 2019. The Complainant was informed by letter dated the 16th September 2019 that he was being dismissed for gross misconduct. The Complainant appealed this decision.

The Complainant had an informal meeting with the Directors of the Company on the 23rd September 2019 following which the Complainant submitted a further handwritten letter dated the 26th September 2019 wherein the Complainant stated:

“I appreciate you taking the time to meet me. As you know I’m appealing the decision to dismiss me. I know you didn’t take the action lightly. I let myself and the company down by my actions and I’m truly sorry for my behaviour. I’m writing to you today to ask would you reconsider your decision. I know this is probably a futile request and I have no right to ask but I was hoping to have one more chance to change your minds.”

Ultimately, the Complainant was informed that by letter dated the 26th September 2019 that the decision to dismiss him was upheld.

In the particular circumstances of this case , the Complainant submitted that there was no bona fide complaint which gave rise to the initiation of a disciplinary procedure and his ultimate dismissal. There is no substance to the allegation that the Complainant was insubordinate. Further, the Complainant submitted that the behaviour of the Respondent, in the context of this case, was both disproportionate and unreasonable in the extreme and did not warrant the sanction of dismissal especially considering the exemplary and dedicated service of the Complainant over the course of his employment.

The Complainant, in their submissions relied upon the principles in Frizelle v New Ross Credit Union Ltd (1997) IEHC 137. Further, the Complainant cited The Governor and Company of the Bank of Ireland v James Reilly (2015) IEHC 241 in support of their submissions.        

This Complaint was received by the Workplace Relations Commission on the 11th December 2019

The Complainant commenced alternative employment on the 10th February 2020.

The nature of the Respondent’s business is the manufacture of all natural knitwear.

The Respondent outlined the timeline and their perspective in relation to the matters that ultimately led to the Complainants dismissal on the 26th   September 2019.

The Respondent submitted that the Complainant had worked well in his role for a number of years, however in recent years he had become insubordinate, aggressive and disrespectful towards the Respondent, it servants, agents and customers.

The Complainant had previously been placed on a final written warning arising out of an incident which took place in or around the 28th March 2018. Following this incident the Respondent engaged an external party to carry out an investigation into this incident. The Complainant was issued with a final written warning following the investigation and disciplinary process which remained live for a period of one year. It should be noted that the behaviour exhibited by the Complainant during the incident of the 28th March 2018, was sufficient to attract a sanction of dismissal, however the Respondent did not impose the sanction of dismissal at that point. This final written warning was not live and was not considered in deciding the sanction imposed with regard to his dismissal.

On the 16th August 2019, the Complainant was required to repack an order he had prepared for delivery as it had been packed in the incorrect boxes. The Complainant was fully aware that the boxes into which he had packed the order were incorrect. He was given an instruction from management not to send out the order and to await the arrival of the correct boxes which were due to arrive the following Monday. The request to repack the boxes was given by the MD.

The Complainant questioned the MD’s decision to repack the order by email on the 19th August 2019. A supervisors meeting was due to take place at 11.00am on the 19th August 2019. The Complainant initially refused to attend the meeting, claiming he was understaffed. Despite this, a specific request was made of the Complainant to attend, and he subsequently did attend.

During the course of the meeting the Respondent submitted that the Complainant behaved in a disruptive, disrespectful and aggressive manner towards management. This behaviour had a very negative impact on the meeting and on staff present. Following the meeting the CD spoke to the Complainant in private in an attempt to ascertain what was causing the Complainant to behave in such a manner. In response the Complainant became extremely aggressive and began shouting at the CD. The Complainant was asked to take some time out to consider his current behaviour and the behaviour exhibited during the meeting, before reconvening later to discuss matters. Having made this request of the Complainant the CD began to walk away from the Complainant. The Complainant replied instantly to the CD’s request, stating he had considered his behaviour and there was nothing wrong with it. The Complainant then stepped forward aggressively into the CD’s personal space and he instructed the Complainant to get on with his work and continued to walk away.

Following this confrontation, the Complainant continued to send emails to the MD on the 19th August 2019 , copying the CD. On the 20th August 2019, the CD arrived at the Respondents premises at approximately 8.10am. The Supervisors meeting was taking place in the staff canteen as normal, however the Complainant refused to attend, claiming he feared the MD would enter the canteen and intimidate him. Furthermore, the Complainant had handed back his keys to the Respondent’s premises and asked them to be returned to the CD. The Complainant was refusing to open the shutters of the premises, a duty which he had carried out consistently for more than 10 years.

The CD approached the Complainant to ask him why he was returning his keys. The Complainant requested the conversation take place on the factory floor so as other staff members could witness same. The CD obliged and moved to the factory floor. The Complainant stated that he was no longer willing to open the shutters despite the fact that he had done so for years as he had received a ‘disgusting’ email from the MD the night before. During this conversation the Complainants voice was very loud, as if trying to ensure those within earshot could hear.

The CD told the Complainant to grow up and began to walk away. The Complainant began to shout at the CD, at which point the Complainant was asked to leave the premises for the day, due to the fact that he appeared to have lost all control of his emotions and was behaving in an extremely aggressive way. The Complainant refused to leave the premises. The CD told the Complainant to leave the building, and then began to walk away. The Complainant then proceeded to scream loudly stating that he felt intimidated, and that all those present on the factory floor were witnesses.

The Complainant returned to the stores and began to continue with his work. The CD   returned to where the Complainant was working with one of the managers. The CD calmly repeated his request that the Complainant leave the premises for the day. The Complainant again refused, again displaying extremely aggressive behaviour and encroaching on the CD’s personal space whereupon the manager asked the Complainant to remove himself from the CD’s personal space. As the

Complainant was still refusing to leave he was informed that if he didn’t leave he would not be paid for the remainder of the day, however if he did leave, he would be paid for the full day.

The Complainant was told the matter could be dealt with the following day when the MD was on site. Upon hearing the MD was not on site the Complainant became aggressive and demanding that the CD call him and request that the MD return immediately. The Complainant made this demand three times, he then went to his computer and began to email the MD. The CD asked that the Complainant leave the building once more, and that if he wished to email the MD he could do so from home.

The Complainant did not attend work on the 21st August 2019. He phoned the office at 9am to state that he would not be in for the remainder of the week. During the Complainants absence it was decided that he should be suspended from work on full pay to allow an investigation into the behaviours exhibited by him as outlined above.

A letter informing the Complainant of his suspension and the commencement of the investigation into his recent behaviour was hand delivered to his house on Friday 23rd August 2019. The letter informed the Complainant that an independent external organisation would conduct the investigation.   A copy of the investigation and disciplinary procedures were also provided.

Despite the letter being delivered to the Complainants address in person he nevertheless attended for work on the 26th August 2019. Upon arrival the Complainant was informed that he was not expected at work by the manager.The Complainant, accompanied by the manager went to the CD office where he was informed that he was suspended with pay pending the outcome of an investigation into matters. The Complainant claimed he had not received the letter, he demanded a further copy, which was provided. He insisted the copy was provided by registered post.

The investigation was conducted by an external investigator and relevant witnesses were interviewed and a report prepared. The outcome of the report was, inter alia, that: “the Complainant’s subsequent behaviour in engaging publicly in a clearly confrontational manner with his line manager could only be regarded as unacceptable and contrary to normal acceptable behaviour within the workplace … It is a matter now for the Respondents Management to consider the next appropriate steps to take on foot of this report”.

Following receipt of the investigation report, the Complainant was invited to a disciplinary hearing by letter dated the 10th September 2019.The disciplinary meeting took place on the 11th September 2019. Following the conclusion of the meeting, all matters were carefully considered, and a decision was made to dismiss the Complainant for gross misconduct. The Complainant was informed of this decision by letter dated the 16th September 2019. By letter dated the 20th September 2019 the Complainant sought to appeal the decision to dismiss him. He set out a number of grounds of appeal which were considered carefully by the Respondent.

The Complainant sought an informal meeting with the directors of the Company following his dismissal and he met with them on the 23rd September 2019. Following this meeting the Complainant submitted a handwritten letter dated the 26th September 2019 wherein the Complainant stated acknowledges his behaviours as being entirely unacceptable

The Respondent having fully considered the points made by the Complainant with regard to his appeal they were of the view that the behaviour displayed was too serious to permit a sanction lessor than dismissal and consequently the decision to dismiss the Complainant was upheld. The Complainant was informed of same by letter dated the 26th September 2019.

It is submitted therefore that in all the circumstances, the Complainants dismissal was both procedurally and substantively fair. In regard to the procedural aspect of the dismissal the Respondent afforded to the Complainant a fair, and transparent investigation conducted by an independent third party. The Complainant had every opportunity to put forward his version of events and to mitigate any behaviours which were admitted or which were found to have occurred. The Respondent denies that there were any defects present in the procedures invoked by the Respondent and in that respect relies upon Atkinson v Cope Foundation, UD483/2015.

It is submitted therefore, that the Complainants dismissal was both procedurally and substantively fair in all the circumstances and as such his complaint is without merit and must fail.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“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) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act 1977 which provides

“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 other substantial grounds justifying the dismissal”

Accordingly, the burden of proof lies with the Respondent to show that the Complainant’s dismissal was fair. In formulating a decision in the particular circumstances of this case, I am cognisant that in my role as Adjudication Officer, I must not assume the mantle of an employer regarding the facts in any case. My role is to decide whether , within the so called band of reasonableness of decision making, an employers decision is not unfair. The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd -v- Swift (1981) IRLR 91. The band of reasonable response test was articulated by Lord Denning, MR:

“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 have reasonably 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”

Further, in Bunyan -v- United Dominions Trust (1982) ILRM 404, the EAT endorsed the view that “the fairness or unfairness of 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. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision has been taken and our function is to test such decision against what we consider the reasonable employer would have done and or concluded”

The Labour Court, recently citing Bunyan with approval has confirmed the applicability of the British Leyland Test in O’Brien -v- Dunnes Stores Limited UDD 1714. However, the Labour Court also stated in Morey -v- Dromina Community Playground UDD1715, that

“if the decision to dismiss was not within the range of reasonable responses then there cannot be substantial grounds justifying the dismissal.”

In the particular   circumstances of this case, I note that the Complainant and the MD and the CD of the Respondent Company had an excellent relationship for many years and that the Complainant was a valuable employee wherein he was part of the Respondents showcase sales events wherein he generated significant sales at these events. However, the behaviour of the Complainant began to escalate in relation to other employees, evidence of which was heard at the hearing of this matter and accepted by the Complainant. Ultimately, the Complainant’s escalating behaviour culminated in his dismissal following the aforementioned incidents that commenced on or about the 16th August 2019. I particularly note the “Hail Mary” letter dated 26th September 2019 , as described by the Complainant in the course of this hearing, wherein he effectively accepted that his actions had let both himself and the company down and he apologised for same.

I accept that the Complainant’s letter of the 26th September 2019 was heartfelt and an attempt to put all the previous incidents in the past. However, in consideration of the above, I prefer the evidence of the Respondent and, on the balance of probabilities, I find that the behaviour of the Complainant effectively amounted to gross misconduct, in this instance insubordination and abusive, threatening and intimidatory conduct. Accordingly, the decision to dismiss the Complainant was within the range of a reasonable response by the Respondent and there were substantial grounds justifying the dismissal of the Complainant.  

Further, for the avoidance of doubt, in relation to the disciplinary process and in consideration of the Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 which aptly sets out my remit in relation to disputes regarding internal investigations 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.”

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, in relation to the ongoing dispute, conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases. Accordingly, having examined the process in question and upon consideration of both parties evidence and submissions, I am satisfied that the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases. Furthermore, I do not accept the Complainant’s submission that the external investigation carried out by an independent third party was either sub standard or that the principles of natural justice were not followed.

In the particular circumstances of this case, I find that there were substantial grounds to justify the Complainant’s dismissal and therefore this complaint fails.

I find that the Complaint (CA-00032856-001) made pursuant to Section 8 of the Unfair Dismissals Act 1977-2015 fails.

Unfair Dismissal