ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020940
Parties:
| Complainant | Respondent |
Anonymised Parties | Driver | Distribution Company |
Representatives | Dave Curran SIPTU | Conor O'Gorman IBEC, Fiona Bannon, Ray Peelo, Eoin Butler, Sinéad Monaghan |
Complaint:
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-00027558-002 | 05/04/2019 |
Date of Adjudication Hearing: 20/01/2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Driver from 23rd March 2009 to 31st October 2018. He was paid €5,167.07 per month. He has claimed that he was unfairly dismissed and has sought reinstatement or compensation. The Respondent has rejected this claim. The claim ADJ 20151 was a duplicate and has been withdrawn. |
Summary of Respondent’s Case:
The Complainant was issued with a final written warning in July 2017 following complaints of bullying and harassment. That matter is currently before the Labour Court on appeal. He commenced a period of sick leave in September 2017. Between June 2017 and March 2018, he regularly sent aggressive emails to management. Management had raised concerns about the content of the emails. In February 2018 HR deemed that the matters were of sufficient concern to warrant an investigation. Previously the Complainant had requested an independent investigator to be appointed. The Respondent agreed to appoint an independent investigator. Following the issuing of that report the Complainant declined to comment on it. The matter was then escalated to a disciplinary investigation into “the sending of a significant number of emails that which areinappropriate, unprofessional and disrespectful in nature”. The Complainant was represented by his SIPTU Official. He alleged that the medication he was on may have played a part in the content of his communications. He did not apologise or express regret for his behaviour. The Respondent considered his responses and decided that they were left with no alternative other than to dismiss the Complainant. He appealed the sanction to dismiss and the meeting took place on 14th November 2018. He was again represented by his SIPTU Official. The decision to dismissal was upheld. This dismissal was not unfair as it resulted wholly from the conduct of the employee as per Sec 6(4) of the Unfair Dismissals Act. They cited Looney & Co v Looney UD 843/1984 in support. The Complainant’s actions amounted to a breach of trust between the parties. The importance of trust was emphasized in the decision Audrey Burtchaell v Premier Recruitment International Ltd t/a Premier Group UD1290/2002. When trust is broken the employment relationship cannot be sustained. He was on a final written warning at the time of the dismissal. Following the issuing of the final written warning he continued his abusive behaviour. He continued to show a blatant disregard for the right to dignity and respect of his colleagues. He continued to show his unwillingness to acknowledge the consequences of his actions. The Respondent went to the expense of appointing an external investigator, primarily because the Complainant had these communications with most of the management team. He was at all time afforded fair procedure. He was aware of the allegations made against him, given the right to respond, matters were carefully considered, he was given the right of representation and an impartial decision was made. He was given the right of appeal. So the dismissal was procedurally fair in all respects. They cited Noonan J. in Bank of Ireland v Reilly [2015] IEHC 241 in support. This dismissal was substantively and procedurally fair and the claim is rejected. Summary of Complainant’s Case: |
The Complainant had two absences from work due to injury at work in 2016. In February 2017 he took injury leave until June 2017 He remained on slightly modified duties until 19th September 2017, when he was sent home as there was no work for him. Both the Complainant and his Union wrote to the Respondent pointing out that they had not followed their own policy. He pointed out that his GP certified him fit to return but the Respondent advised that they were ‘actively managing his absence’. He was in receipt of no income. He complained about being excluded from the company. He sent numerous emails requesting to be returned to work. The Company Doctor on 10th January 2018 highlighted their concerns about him driving with the medication that he was on. The final medical decision was that he was fit to return to work. On 22nd February 2018 he was advised that the Respondent was carrying out a review of emails sent by him to his managers. On 9th March they advised that they were to begin an investigation and that he was put on paid suspension. His Union wrote on 6th April 2018 seeking full details of the investigation. They replied that at that stage there were no allegations but following the company investigation any such matters will be considered. He met with the Investigator on 9th May and he was represented by his Union Official. He raised concerns about this investigation as he had not seen any of the emails referred to. The Investigator issued his report and he was invited to a disciplinary meeting. At a meeting on 10th September he accepted that the emails should have been worded differently. He highlighted the medication that he was on. He pointed out the fact that he had no income and a tragic family case that had affected him. He pointed out the problems with the investigation that led to the disciplinary hearing. He was dismissed on 3rd October 2018. He appealed the decision, but it stood. The Respondent failed to take into account the medication that he was on, the fact that he accepted that the wording should have been different, that he had never used obscene and abusive language, never misrepresented information or breached trust and loyalty. They failed to take into consideration his frustrations at being excluded from work, this explained the tone of his emails also they didn’t take into consideration that a family member was terminally ill at that time. There was no substance to the allegations put to him e.g. abusive language, there was no information to support that. He was never given the full details of the allegations made against him. The investigation report produced no findings. It does not find that there was misconduct. There was no justification why he was suspended from work. This decision to dismiss was disproportionate given all the circumstances and mitigation which they did not take in to account. They failed to state the allegations clearly. Their actions to suspend him suggest a predetermined effort to get rid of him. He found work on 28th January 2019 earning €25/26k less per annum. He had a loss of €15k between November 2018 and January 2019. He is claiming a loss of €25k in the first year and €27k in the second year. He is also seeking compensation for his superannuation of €60k. They are seeking reinstatement or compensation.
Findings and Conclusions:
Substantive matter
I note that he was issued with a Final written warning for improper behaviour of bullying and harassment. I note that he had not co-operated with that investigation and that he had also breached confidentiality regarding that matter. I note that he appealed that sanction to the Adjudication Services of the Workplace Relations Commission (WRC) and subsequently to the labour Court. I note that since that warning was issued, he had sent over 70 emails to members of management, in particular to his manager during a nine-month period, two thirds of which were sent while he was on sick leave. I note that the Respondent deemed these mails to be belittling, abusive and unwarranted. I note that management had issued an instruction to him to cease sending these emails. I note that the Respondent appointed an external investigator to establish the facts regarding this behaviour. I note that the Complainant declined to comment on the report. I note that the Respondent escalated the matter to a disciplinary investigation. |
At a meeting on 10th September he accepted that the emails should have been worded differently. I note that he highlighted the medication that he was on as a possible reason why he sent them. I find that he did not supply supporting medical evidence to support that assertion. I note that he declined to comment on the report. I find that the tone and content of the emails were unacceptable. I note that the Respondent relied upon the final written warning and then applied the final sanction of dismissal as they believed that he had failed desist from his unacceptable behaviour. I find that he had become unmanageable and so the Respondent decided that there were sufficient grounds to terminate the employment. On the basis of the Complainant refusing to adhere to management’s legitimate instructions and as a result becoming unmanageable, I find that the dismissal was substantively fair.
Procedural matters
I find that the Complainant was wrong not to raise a formal grievance about his own concerns. I find that the Complainant was wrong to bombard the management in particular his direct manager with emails, despite having been instructed not to do so. I find that he failed to follow a legitimate instruction not to send all these emails. I find that when he was given a copy of the External Investigator’s report, he declined to comment on it. I find that by not responding he denied himself the opportunity to have his case heard. I find by not cooperating with the investigation he was declining to address his own issues with the company. I find that his actions frustrated the management, in that he constantly sent emails about issues concerning himself, he failed to raise a formal grievance, he failed to respond to the external investigation report. I find that he was becoming unmanageable regarding his behaviour and responses. I find that he failed to directly address issues raised. I find that invariably he skirted around the issues and circumvented them; this had the effect of prolonging the matter. I find that he made statements, yet the information presented shows that the management had addressed them e.g why he was not paid in Dec. He was advised in writing that his pay would stop the end of November, yet he queried why it stopped in December, already knowing why. I find that this was typical of why he frustrated the management. I find that the Respondent relied upon a final written warning to move to the final sanction of dismissal despite the fact that it was appealed. I note that the recommendation of the WRC Adjudicator was to lessen the sanction to a written warning. However, I find that he did not accept this and appealed it to the Labour Court. I find that the Respondent should not have relied upon that final written warning, pending its appeal. I find that the Respondent should have considered a lesser sanction such as, an unpaid suspension and final written warning. I note that the Complainant sought employment and found work on 28th January 2019 earning €25/26k less per annum. I find that he was made aware of the allegations and he was given the right to defend himself and the right of representation and appeal. However, I find that the punishment did not fit the crime. I find that relying upon a final written warning, which was under appeal, it has rendered the dismissal procedurally unfair. Therefore, I find that the dismissal was unfair. However, I find that he has contributed considerably to his dismissal. I find that re-instatement is not an option as he has contributed to his dismissal. I find that there has been a breakdown of trust between the parties so re-engagement is not an option. I find that compensation is the most appropriate redress, but the quantum of the award must reflect his contributions to his dismissal.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. For the above stated reasons, I have decided that this complaint is well founded. I have decided that the dismissal was unfair. I have decided that the Complainant has contributed considerably to his dismissal. I have decided that compensation is the most appropriate redress. I have decided that the Respondent should pay compensation of €17,500 for the unfair dismissal, which reflects his contribution to the dismissal. This should be paid within six weeks of the date below.
Dated: March 23rd 2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Procedurally unfair dismissal |