Complainant

Respondent

Anonymised Parties

A Postal Operative

A Postal Service

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-00029113-001

17/06/2019

This case concerns a claim for unfair dismissal on behalf on the complainant, a Postal Operative. The claim is denied by the respondent, who operates a large Postal service.

Both parties were legally represented. The complainant by Emmet Boyle, BL and the respondent by Brian Hallisey, BL.

Both parties made written submissions. The respondent submitted copies of company procedures relied in the case.

The complainant has not worked since his dismissal.

The Respondent operates a large Postal service and employed the complainant as a Postal Operative on a temporary basis from 18 January 1993. He secured a permanent appointment in July 1995 and worked until the date of his dismissal for gross misconduct on 15 June 2019. His weekly base income was €615.00 gross. The respondent denied that the complainant had been unfairly dismissed.

Counsel outlined the background to the case. On 29 June 2018, the complainant visited a client premises during his duty. During delivering post, he engaged in inappropriate behaviour with a female employee on the client site.

On 4 July 2018, the customer service division received a complaint from the Director of HR for the client company which contained the following:

A male member of your delivery staff is accused by a female member of our staff of inappropriate behaviour at our office on Friday 29 June 2019 last.

Your office was asked not to allow the said person to deliver to our office until at least the matter was fully investigated by X and Y. This ban lasted one day, Monday 2 July but he was back again yesterday and today ……

The matter had been brought to the attention of the Gardai and the author requested to speak to a Senior member of HR staff.

On 10 July 2018 the Respondent HR Manager reviewed the CC TV footage of the incident. On 11 July, the respondent was advised by the Gardai of a live complaint against the complainant which was being investigated.

The complainant’s employment is governed by an agreed disciplinary Policy.

On 12 July 2018 the complainant was asked to attend a meeting at regional office with the Human Resource Manager. He was advised that a serious allegation was made by an employee at the client site regarding his conduct on 29 June 2018. Further enquiries were required prior to providing the complainant with the specific allegations. The complainant was represented and placed on paid suspension to facilitate an investigation. He was notified that “A further meeting will take place shortly to allow for specific allegations to be put to you.”

The respondent in considering the potential criminal aspect delegated the investigation to its Investigations Branch.

On 18 July 2018, the Investigator and the Respondent HR Manager attended the client site where the Director of HR provided CC TV footage on consent and three signed written statements by client employees. Ms S, the aggrieved employee also submitted a statement of complaint. She recorded that the complainant during post-delivery of mail had kissed the top of her head.

On 19 July 2018, the investigator met with the complainant who was represented. The CC TV footage was shown to the complainant who denied kissing the client employee and gave his varied account of what had occurred. This centred on his having to place mail behind the reception area due to a group of people being present in his habitual delivery area. He denied kissing Ms S.

The Investigator concluded, and a report was submitted to the Respondent Human Resource Department in August 2018.

By letter dated 20 September 2018, the complainant was advising that preliminary enquiries had uncovered that several serious issues of trust and confidence in the complainant had arisen which warranted the commencement of disciplinary proceedings.

On 9 October 2018, a Disciplinary meeting took place where the complainant was represented by his Union. He was advised of his opportunity to put forward any matter for consideration with Ms A, the Disciplinary Manager. The complainant contended that his entrance to the delivery area was obstructed and he was compelled to walk around the counter. In his attempt to deliver the post, he lost his balance. He was provided with CC TV stills from outside the building and all resulting documentation from the Disciplinary procedure.

Mr C Human Resource Manager was provided with Ms as report and he decided to dismiss the complainant by letter dated 27 February 2019 because he had:

“breached the fundamental trust required of a Postal Operative by approaching a female customer while at work” He found that the complainants actions had “blatantly infringed the female customers personal right to bodily integrity and to have a safe place of work”

The Respondent provided an opportunity to appeal and this was heard by Mr D, Head of Employee Relations on 11 April 2019. The decision to dismiss remained unaltered and the complainant received confirmation of his unsuccessful appeal on 7 June 2019.

Counsel submitted that dismissal for gross misconduct was the appropriate sanction for the complainant. He had been afforded fair procedures and natural justice. The respondent had followed the agreed Disciplinary procedure which complied with SI 146/2000 code of Practice on disciplinary Procedures.

The Respondent relied on the test in Morales v Carton Bros UD 835/2011 in determining whether an investigation met the required level of fair procedure

1 The employee was aware of all allegations

2 the employee had adequate opportunity to deny the allegations

3 evidence of witnesses sought where allegations were denied

4 right of representation

Counsel submitted that the test had been met in the instant case. The investigation report was submitted to Ms A who had determined a serious question had arisen on trust and confidence.

The decision to dismiss was reasoned and the respondent relied on section 6(4) (b) of the Unfair Dismissals Act as the dismissal was based on the conduct of the complainant in respect of an allegation of inappropriate behaviour which constituted gross misconduct. The conduct resulted in a serious breach of the fundamental trust required of an employee in the complainant’s role. The Respondent drew on the reference made Mutual Obligation by Finnegan J in Berber v Dunnes Stores ltd [2009] IESC 10. The complainant was always aware that his actions would amount to gross misconduct.

Counsel referred to the case of a Senior Mans Clothing salesman and A Clothes Retailer where a dismissal for sexual harassment was reached having taken account of the perceptions of the complainant in the case and mindful that the perpetrator in the case had not fully grasped the significance of their actions on the complainant or demonstrated remorse.

Summary of evidence of Mr A, Human Resources

Mr A had a 41-year background in HR. On 5 th July 2018, he received a copy of the email sent from the client site to customer services. He contacted the Director of HR on the client site who was unwilling to discuss in detail.

He understood that the complainant was advised not to continue to deliver to this client site and he commenced an initial investigation.

By July 10, he had secured a copy of the complaint and CC TV footage. He obtained GDPR clearance. He met with the complainant and his union representative and handed the complainant a letter which outlined that serious allegations had been levied against him and he was being placed on suspension with full pay. The complainant requested access to CC TV footage.

Mr A accompanied the Investigator to a meeting with the client site on 18 July and established that the nature of the complaint from the Receptionist at the client site was of the nature of “un welcome physical contact “He could not recall seeing the CC TV footage on the 18 July.

On 19 July, the Investigator met with the complainant and Mr A sent out a record of the meeting. The complainant was informed that the Gardai were involved. Mr A denied steering the meeting.

During cross examination, Mr A conformed that he was not aware of an outcome of Mr Bs encounter with the complainant. Mr A had decided to suspend the complainant and he recalled that the complainant was unhappy in receiving this news. He clarified that the specific allegations were not provided to the complainant at the time of his suspension. It was a short meeting where he informed the complainant of the CC TV footage, but he had not seen it.

Mr A confirmed that he had not steered the Inquisitorial process. He re-affirmed that he knew the complainant had alerted his manager on 29 June 2018 and the complainant was off deliveries on 5 th July. He had received this information by email. The original complaint had been circulated through the line including the line manager.

Mr A clarified that the Investigation Branch becomes involved in the case of any suspension of fraud or criminality.

Mr A reflected that the complainant had previously been suspended in 2003/2004. He acknowledges that the Client based complainant’s complaint was unsigned an could give no explanation for the redactions. He was not aware if the complaint had been furnished to the complainant.

Summary of evidence of Mr B, Delivery Manager

Mr B recalled 29 June 2018. The complainant approached him and told him that he had visited the client site and in the process of delivering the mail, he had brushed off the receptionist. He reported that he had been told to “go away “. Mr B said this did not sit right with him. The Complainant said that he was informing him as he had a concern and wanted it placed on the company log, just in case. Mr B had not compiled a report.

He became aware of a customer complaint the following Tuesday and he understood that the complainant was not to deliver post to that address. He was removed from this duty on the Wednesday.

He read out his log of the event which he compiled unaided on 20 July at 11.40 am. The complainant had been on his mobile phone in a private conversation and he wondered if perhaps he may have tapped the receptionist on the shoulder? He thought it might blow over. Mr B confirmed that his job centred on recording issues.

Mr B clarified that the Mobile Phone Policy required headphones while driving.

During cross examination, Mr B confirmed that he lacked authority to relocate staff. He could not recall if Mr A had contacted him during the process. He confirmed that he had mentioned the complainant’s disclosure to his manager when questioned again by his own counsel.

Mr B confirmed that going behind a desk during a delivery was not a prohibited action. Protocol on Mail delivery is by standard Operating Procedure and peer training.

He elaborated that the client site a new run.

Mr B had sent details on wages to the investigation but had only heard of the complainant’s suspension after the event.

Summary of Ms A Human Resource Executive evidence

Ms A became involved in the case in September 2018 post as she was on Term Time during the Investigation. The matter had been with the Investigation Branch until then. She confirmed that she read the file and set out a letter to the complainant setting out the parameters of the initiated Disciplinary process and the complainant was invited to an Oral Hearing. On foot of having received the Investigators report, Ms communicated:

“we believe that the company’s preliminary enquiries, as carried out by the Investigation Branch have uncovered a number of serious issues which warrant the commencement of disciplinary proceedings “

The live issue was that of trust.

Ms A knew that it was a traumatic period for the complainant. The parties convened on 9 October 2018.

CC TV Footage was made available to the complainant who availed of the opportunity to consider this up to Christmas 2018. The complainant undertook to furnish the mobile phone records of a simultaneous conversation with his wife and daughter returned from Spain on 29 June 2018. These were not received by the respondent.

Ms A prepared a summary of the case and forwarded this to Mr B, Level 3 Manager. This did not provide an outcome decision.

During Cross Examination, Ms Confirmed that the Oral hearing lasted 30 minutes. She clarified that her role was both discrete and probing. The complainant was provided with an opportunity to respond to issues raised through clarification or investigation. She was not vested with decision making on an outcome in the process.

Ms A clarified that the complainant was provided with statements, Client service letter, Witness     Statement 17 July, the CC TV stills. Ms A confirmed that she did not know that the complainant had not seen the letter of complaint. She refused to disclose the letter send to Mr C and did not have any interaction with him.

Counsel pressed Ms A on whether she had the parallel criminal processes on her mind? She denied that she was influenced by this as she didn’t know if the Gardai were involved.

Ms A clarified that the respondent did not operate a Policy on interaction with external customers but agreed to forward the Respondent code of conduct which covered this.

Evidence of Mr C, Decision Maker

Mr C received the file from Head Quarters and was charged with a decision in the case. He considered the file carefully before the CC TV footage and was aware that all cases differ. He could not see the slip which the complainant had relied on. He did see “something at odds “.

The complainant had detailed that 5 to 6 men were blocking his way and he was unable to place the mail on the left side. Mr C saw room on the left side and he observed an outstretched hand. The complainant held onto the mail and went to the right side. He observed a slight inflection on the complainant’s part which looked like a hug and not a kiss.

Mr C viewed this as a serious case of misconduct and while he would always consider alternative or lesser sanctions he had to take everything into account. The company is customer focussed and the receptionist addressed the complainant and she was ignored. The complainant caused the respondent reputational damage as he relied on 5 to 6 people being an obstacle to his passage through, yet no material evidence was secured on their ever being there.

Mr C submitted that the complainant’s length of service should have equipped him with a more pronounced adherence to company rules. He was not there to upset the customers.

During cross examination, Mr C re-affirmed that there was no opportunity for redeployment in the complainant’s case. He had given some consideration to the complainant’s length of service but could not accept that a short sanction of eg. 2 years duration would not have been a proportionate sanction in this case.

Mr C was troubled by the complainant’s attitude as he had not displayed an insight and denied any wrongdoing towards a vulnerable person as a customer. This did not amount to contrition. He submitted that the complainant knew that the dignity at work policy covered external clients and serious assault was forbidden in this Policy. Trust was broken and there was no way back to the company. He could not have a confidence in the complainants return to work. There were too many obstacles. It was not viable to redeploy the complainant

Mr C clarified that he had not interviewed the client site complainant.

Evidence of Mr D, Head of Industrial and Employee Relations, Manager of Appeal

Mr D had responsibility for Human Resources across 5 regions. He confirmed that he had sought procedural advice and the complainant had elected for an oral appeal. The meeting lasted 20-30 minutes.

The Complainant disputed the allegation of kissing the Receptionist and argued that it was “a set up “where she was trying to sue him.

Mr D probed the events recorded in Still no 28 of CC TV Footage and asked the complainant to simulate the actions of 29 June. He wanted to know how the complainants body came into the position it did. The complainant put his arms around him from behind and stumbled in the demonstration.

Mr D considered the misconduct and was satisfied that it had occurred. He was satisfied that the sanction was proportionate and decided that that this behaviour demonstrated to the opposite sex was not acceptable. He could not identify a pathway of return to work for the complainant. It was not feasible that the occurrence was an accident.

The complainant did not apologise and after 26 years’ service, the complainant ought to have been aware of a correct approach to customers.

Mr D explained that he was perfectly capable of overturning or applying a lesser sanction, but the circumstances of the instant case did not warrant a deviation on this occasion.

During cross examination, Mr D confirmed that he was aware that the complainant had reported the 29 June incident to his own superior and was permitted to continue working.

Mr D confirmed that he was involved in the planning of the management of the complaint in early July. He was not involved in the decision taken to suspend the complainant. There had been a delay at security level.

Mr D confirmed that it would be impossible to try other sanctions as the evidence confirmed that the event took place and had caused significant reputational damage to the company and there was no guarantee it would not re-occur. He did not accept the conspiracy theory raised on appeal.

Counsel concluded that this was a straight forward case of the respondent receiving a serious allegation which was followed by a holding suspension. The respondent operates a national business and the nature of the allegation had the potential to cause reputational harm to the business. The complainant did not provide a credible explanation for what happened.

The Respondent relied on the CC TV footage from the client site which was covered by Ms S consent. The respondent activated the company disciplinary procedure and operated a transparent process.

The complainant was represented throughout and was found to have engaged in serious misconduct where he acknowledges that he had placed his arms around Ms S. This amounted to an evaporation of trust for which he did not convey remorse or contrition. Although not obliged, the respondent paid the complainant notice on his termination.

Counsel disputed that the minor advisory role held by Mr D at the very beginning of the case constituted an overlap in procedures. It could not fairly be viewed as “bringing down the house “

By way of response to the complainant commentary on January 10, 2020, the respondent clarified that the complainant had not been found guilty of sexual harassment. The respondent had acted in accordance with the notified policies of which the complainant was aware. He was found to have severed the fundamental trust of a Postal Operative by approaching a female customer at work.

The respondent submitted that the complainant had advanced an absurdity by suggesting that the Policies were not actioned in accordance with the definition of harassment. The respondent had acted in accordance with company policies.

The respondent submitted that fair procedures and natural justice were evident throughout the case. He was provided with extensive for a for having his response heard and considered prior to any decision taken to dismiss him.

The Respondent outlined that this decision was firmly within the band of reasonableness considered by a reasonable employer and relied on the test in Noiritake Irl ltd v Kenna UD/88/1983

1.       Did the respondent believe the misconduct as alleged?

2.       Did reasonable grounds accompany that belief

3.       Was the penalty proportionate

In applying comments from Bigaignon v Powerteam Electrical Services ltd [2012] ELR 195

…. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key ….

Finally,

It is clear that the actions of the Complainant and the consequences of those actions led the respondent to a difficult decision. The Complainant inappropriately approached an employee of a customer and left her shaken and upset. This left the relationship of trust, which is fundamental to the parties herein, irreparably damaged and accordingly, the decision to dismiss was entirely reasonable in the serious circumstances of the case.

The complainant is a long standing Postal Operative and has submitted that he was unfairly dismissed by his former employer on 15 June 2019.

He submitted that the sanction of dismissal was too severe for something he had not done. He contended that he had not received a fair hearing.

Counsel outlined that the complainant had disclosed full details of the occurrence on the client site immediately and was shocked when the respondent adopted an Interlocutory approach on July 12, 2018 where the complainant was cautioned by his employer as in a criminal investigation

Counsel contended that the respondent went on to adopt a preconceived view of the alleged occurrence and the respondent was not impartial. Counsel submitted and emphasised the application of Frizzell and New Ross Credit Union

He contended that dismissal was proportionately unfair on the full facts.

Evidence of the Complainant

The Complainant outlined the background to his diverse role. He had undertaken evening work, postman in a country setting, truck driving, Night sorting work, and Merchant deliveries. dur8ing the course of this work he had met thousands of people

The Complainant confirmed that the criminal Case had been dismissed and the Probation act applied.

The complainant submitted that he had told Mr A about his encounter with the client employee. During the 12 July meeting he had been advised that the respondent was investigating an allegation.

He confirmed that he had C5 in his Spine area removed in 2013 followed by a 9-month recovery. He was prone to panic attacks post the June incident, these had been few and far between previously as he had ceased medication.

He was unsure about his availability for work in his former role but indicated that he was available for other roles.

During cross examination, the complainant reflected the high temperatures of 29 June 2018, he recalled that he pulled up at company premises and had been on speaker phone to wife and daughter. He assumed that 5-6 people were ahead of him inside the internal door. He contended that he saw them later CC TV. The Receptionist was seated down at the end of the counter he assumed she was avoiding the sun. she was sitting in a different place. He approached the desk with his phone to his ear and wires and mouse were on the left of reception.

He maintained that he placed one arm around her while keeping the mail in the other hand. He understood the receptionist had told him he was over the top, but he could not figure out what she was saying. He knew he acted inappropriately but it was not intentional an he was not given a chance to apologise. He did not mean to upset her, but his gait had been affected post-crash.

He was working as usual on the following Tuesday and Wednesday. He knew the receptionist worked Thursday and Friday.

In recalling the circumstances of suspension, the complainant confirmed that he understood that he was informed that the client had made a complaint and Mr B was checking it out as he was not sure of the reason. He saw the CC TV after he was questioned and clarified that he saw men coming out of the building on this CC TV later. He had endeavoured to validate the presence of the men he saw but was informed that he had seen the extent of the footage.

The complainant detailed the list of documents he received by registered post in late September 2018.

He addressed his earnings since dismissal and re-affirmed his availability for work. He answered Counsels questions on whether he accepted that the respondent acted reasonably in dismissing him? by remarking that the sanction was extremely heavy. He did not recall asking for a lesser sanction.

He did not accept that it was impossible to have him back to work and submitted that the decision to dismiss him had a life changing impact on him and ins8ufficient regard had been applied to him. He had lost his confidence. He had developed an awareness of how the respondent saw things but the disputed that trust had gone. He had suffered greatly financially and had to rely on siblings for support. He confirmed that he had told the respondent that he would settle for a written warning.

He had not provided the phone records to the respondent. He had no further witnesses.

Evidence of Dr E, Clinical Psychologist

On meeting the complainant in Autumn 2018, he found him a distressed disengaged man who was withdrawing from life. He attended a Psychiatrist. Dr E reflected that the complainant enjoyed the job he worked in but had descended to being fearful and felt that life was outside his control and he felt like giving up.

He continued to have an interest in music but was not gregarious as he described previously. He had described the good days as his being buoyant and confident. Dr E identified that the complainants prognosis rested on the implication of certainty being restored, then anxiety would be abated.

Dr E submitted that the complainant had a history of a past trauma during a work incident where glass had imploded causing him a back injury.

During cross examination, Dr E confirmed that the complainant had no previous mental health diagnosis. There had been a 2016 Neuro surgeon report for a Personal Injury case. He clarified that the complainant exhibited symptoms of a Post-Traumatic Stress disorder, treated with Therapy.

Dr E expressed an opinion that the accusations in this case may exacerbate a previous trauma. If the complainant was more resilient these would have lesser impact. He confirmed that the complainant regretted his flamboyance this was not a regret of the actions. He missed his work and believed that he had been misinterpreted.

Counsel concluded that the complainant had been unfairly dismissed as from the very outset, the suspension was an unreasonable approach and the respondent moved to dismissal without any other options being considered for him to reasonably remain within the organisation where he had worked previously. No consideration was given to a lesser sanction.

The complainant had acknowledged throughout that he ought not to have entered the conclave of reception but has denied kissing Ms S. Instead he put forward his version of events which were not believed.

Mr D had been involved at an early stage of the disciplinary process which amounted to an obstacle to the entitlement to impartiality.

The respondent considered the non-admission of the allegation as an aggravating factor and the sanction to dismiss was disproportionate.

By way of replying submission to the company Dignity at work policy, Counsel submitted that the Policy had not been honoured in this case as it reflected the respondent employment as a correct original site for complaints and did not accommodate provision for an externally sourced complaint.

I have considered both oral and written submissions in this case. I have paid special attention to the respondent policies of:

Disciplinary Procedure

Code of Conduct

Equality Policy

Bullying and Harassment Policy

I also viewed the silent CC TV Footage in the company of the parties at hearing.

This a claim for Unfair Dismissal contested vigorously by the respondent. It has taken me some time to reflect on the facts of the case.

I fully accept that my function in the case of alleged misconduct is not to determine the innocence or guilt of the employee or whether I would have dismissed the complainant. I must determine what a reasonable employer would have done in the circumstances that faced the employer Looney V Looney UD 843/1984. I accept the Respondent application of Noritake to that end.

As a prelude to the case, I would like to acknowledge the professionalism and preparedness of all parties involved in the case. Everybody worked hard to put their viewpoint forward.

In addition, I think it important for me to reflect that this case seems to have co-existed with a pre-existing Personal Injuries case and for a time at least with a criminal Investigation which concluded in application of the Probation Act for the complainant. This a complicated pathway for all involved.

I am mindful of the reflections of Dr E, on his professional opinion that certainty was needed in the case for the complainant. I detected that the Respondent reflected this also. I appreciate that both had different visions of that certainty.

My sole purpose here is to make and record my decision on whether I consider the decision taken to dismiss the complainant is to be upheld.

Section 6 of the Unfair Dismissals Act, 1977 provides:

Unfair dismissal.

6

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The respondent has chosen to rely on a defence contained in Section 6(4) (b) on conduct

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) 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,

In this case, the burden of proof rests with the respondent to prove substantial grounds for dismissal. In addition, I may have regard to the following provisions of section 6(7) of the Act.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

I would like to start at the very beginning of this case the July 4 email from the client service quoted above. The client service had requested an immediate “stand back “by the complainant which had been ignored. It transpired at hearing that he had not been appraised of this request by the respondent.

More importantly, I noted that this was flagged to permit dual investigations by the respondent and the client site. The circumstances of this case reflect that the complainant was a mobile worker and the alleged misconduct occurred off site on a customer premises. The off-site location of the transgression goes to the root of this case for me.

Consequently, there are two separate legal entities involved in the case. My enquiries on the existence of a Client site Investigation report did not yield a document, nor did I meet any representative from the client site. This is an important consideration for me in this case.

On the first day of hearing, I was struck that the complainant may not have been appraised of specific allegations now of his suspension on July 12. I decided to look behind this unusual development and my attention was drawn to the choreography of the procedural framework by the respondent.

Mr A sought guidance on the whether an offsite cc tv footage consented by Ms S could be utilised by the respondent for the purposes of the impending investigation into the July 4 email. Several conversations appear to have taken place before an affirmative issued. Mr D was the main inquirer and I noted his reference “to sexual assault “in an email of July 10. However, this had grounded the criminal investigation and not the internal inquiry.

By then, the respondent had received what to me looked like an unsigned statement with redactions of named contacts. I have difficulty in understanding why revisions were not requested in this vital foundation document. I say this as I found multiple inconsistencies in the statement which followed by Ms S dated 18 July 2018 titled statement of witness, Criminal Justice Act 1984, section 21, and composed in the company of 2 client site employees. Ms S husband and 2 employees of the respondent, one of whom was the Investigator of the respondent investigation.

I will pause here and take a moment to consider the client relationship here. No evidence was put forward that the client relationship was damaged in this case or that the client threatened to cease the business relationship.

In this I am mindful of Merrigan v Home counties Cleaning Company ltd UD/904/1984, where a Hospital was threatened with losing a cleaning contract following publication of a damaging newspaper article.

This was followed in another EAT case of Employee v Employer UD 1181/2010, where the complainant had been rejected by a third party, a county council regarding the quality of his work on judging the road worthiness of commercial vehicles. In the absence of an investigation, the EAT determined

“dismissal of an employee brought about through pressure of 3rd parties whether customers, clients, fellow employees or others may be justified provided the employer acts fairly and handles the procedure and investigation properly “

This place a high level of responsibility on an employer in a third-party complaint scenario to explore a valid reason for any pressure exerted against an employee. This places the Investigative process into sharp focus in this case. I did not have the benefit of meeting the Investigator. I did have the benefit of his report.

It is not clear to me which of the respondent policies was actioned in this case. I note that the Dignity at Work Policy was a Collective agreement. I note that the disciplinary procedure was relied on by the respondent with reference to both the code of conduct and bullying and harassment policies. The interparty documentation does not mention the Disciplinary Procedure by name until September 20, 2018, some 3 months post the sole occurrence in the case.

I had a difficulty with the operation of the Investigation in this case as it seems to have been modelled on a criminal framework rather than the acknowledged Disciplinary Procedure at Section 6

Preliminary Enquiries:

Prior to any disciplinary proceedings being initiated under these procedures a process of preliminary enquiry aimed at establishing basic facts and determining whether disciplinary proceedings against any individual is warranted will be undertaken. The extent of those enquiries will vary according to circumstance and will, generally be more extensive in instances which may result in a higher-level sanction being contemplated.

There were no terms of reference governing the Inquiry and frankly, I had difficulty with the methodology relied on by the Investigator. The unsigned and redacted statement from Ms S dated 29 June included in my booklet was a much different document to the statement obtained in the presence of 5 people on 18 July. By this, I mean, the kiss was attributed to two different locations. The complaint had been greatly expanded to include previous encounters in April 2018. In the Labour court case of Vitalie Vet and Kilsaran Concrete, this practice is heavily criticised .

In addition, one of the witness statements reflected that Ms S did not know the complainant in this case, when the first dated statement named him.

I found no evidence of a provision for equality of arms in this Investigation. The client site employees including Ms S submitted statements without any apparent subsequent probing of the very many inconsistencies in these submissions. I found it bizarre that a statement was compiled in the presence of 5 people from various backgrounds and employments.

I noted that the document title Incident report was dated 16 July. It is surprising that this did not trigger an onsite investigation for the client site. I began to wonder if the client site had formed a view that the respondent investigation was somehow a hybrid and collaborative investigation. I could not validate this viewpoint. However, I believe that the respondent intended to investigate the events of June 29 on behalf of the respondent alone.

I have considered the reliance on the CC TV by the respondent. I was not furnished with a CC TV Policy by either party. Given the complainants clear dispute of the footage, I was surprised that this did not appear to activate a further thread of inquiry. I could not identify an earlier objection to relying on a client site cc tv footage. I noted with interest one of the witnesses referenced training taking place involving a grouping of attendees on the morning of June 29. This not probed.

The CC TV footage seen at hearing was silent, yet the investigator concludes that Ms S can be seen exchanging words, without an expansion of same. He also concludes that Ms S can be seen telling a male colleague Mr X about the incident. There are no meeting notes involving witnesses. I am not sure how the investigator arrived at these conclusions.

I also had difficulty with a redacted paragraph 4 on the final page of the Investigation Report. However, the penultimate sentence caused me most concern

“the complainant has never come to attention of this branch in the past however during my investigations it was flagged with me that he has come to the attention of HR on a number of occasions “

This statement carries a suggestion of bias by a person or persons unknown.

The Investigation does not attribute the source of this flagged information, neither did it reach a definitive outcome. It seemed more of a montage of conversations, where the inquiry was reserved solely for the complainant. I am at a total loss as to why the investigation omitted to interview the complainants line manager, Mr B in whom he had discussed the matter contemporaneously. I am also troubled that the complainant’s response to a question on his return visit to the site was omitted and not remarked on earlier.

I understand that procedural perfection is an elusive commodity, however, it is a fundamental cornerstone that an investigation into misconduct of any kind amounts to a fair investigation.

I have concluded that while the respondent was keen to advance fair procedures in this case, and was genuinely concerned, the commissioning of the investigation as an Investigation Branch Inquiry accompanied by Criminal Language of cautioned statements rather than a standard Disciplinary Inquiry was my first sighting of the inequitable dichotomy where the objectives of the respondent and the client site unwittingly collided.

Disciplinary Process:

The investigation report was then considered by Ms A. I took some time to understand the role of this clearing house process, which framed the disciplinary process but did not arrive at or action an outcome. It acted as a Disciplinary Triaging centre.

I was deeply dissatisfied to not receive the report compiled by Ms A and sent to Mr C. The respondent has relied on their actions being transparent, yet I was not provided with this key report.

On the other hand, it is clear to me that the complainant did not engage fully at this process by his first in time reliance on a contemporaneous conversation with his wife on the phone yet failed to submit the records as he offered to do.

I have reflected on Ms A evidence on the evaporation of trust and have taken some guidance from the deliberations of Keane J in a case of seeking an injunction against dismissal for suspected fraudulent transaction in O Leary V A Post [2016] IEHC 277, where the Court ordered that a statement should issue where the specific misconduct was found. This followed a lack of definition of how trust and confidence had been lost.

I found a certain analogy in this case.

The Respondent was clear that the complainant was not found guilty of sexual harassment. His employment was terminated for a breach of fundamental trust by approaching a female customer at work.

I followed Mr Cs considerations of other possible sanctions open to him in evidence. I am mindful of Noonan J in Reilly at para 56

In assessing the reasonableness of the employer’s conduct, in relation to the dismissal, it seems to me that such an assessment 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 to determine the proportionality of the employer’s response.

I found a remoteness in the approach adopted by the respondent at dismissal. I found no regard for the early actions of the respondent to continue to send the complainant on the same run while in possession of a notification of concern. I found that the respondent delayed in compiling the 29 June log until July 20.

. However, the complainant was consistent in referring to a reason for his change of mail delivery on June 29. The respondent disputed this solely by reliance on a client site cc tv edited footage and without engagement with witnesses. I found this to be unsound.

I found that the respondent did not have regard for the impact of dismissal on the complainant after 26 years and where his PRSI classification made him vulnerable for DSP payments.

The respondent declared a zero tolerance for bullying and harassment, yet this was not the reason for given for dismissal.

In Morales, both employees were suspended against a zero tolerance of violence and fighting. The EAT found that “ any employee who suffers an assault , and who understandably fends off the blows and in the process makes physical contact with the aggressor , is deemed equally guilty and should be dismissed is harsh and unreasonable and manifestly unfair “The Tribunal held that the decision taken to dismiss in that case veered outside the “ band of reasonableness “ as the action taken was not supported by the facts .

This is to be distinguished from the instant case, firstly as it is an inter employee dispute and secondly, a history of discord had prefaced the altercation.

I have also considered the approach adopted by the complainant in this case. I was surprised that he had not kept any notes for his personal record of June 29.

I found that he was consistent throughout the case that his access to the desk was impeded by the presence of men. He sought collateral CC TV footage for this but did not find it. I note the evidence of Mr C that he was not persuaded by the complainants account of events. I found that there was an over investment in the CC TV footage of a client site. It was open to a decision maker to engage in disputed evidence further.

I found that the complainant drifted through the procedures. He told me he was shocked to lose his job. Despite his protestations that he had not done anything wrong apart from a misjudged entry behind a reception area followed by a situational wobble, he was prepared to accept a final written warning. This did not sit with me. I can find no reason for the complainant to shy away from presenting his phone records for June 29. This was a worrying and startling omission. However, as stated I am not to determine the complainant’s guilt or innocence, I am assessing the decision-making process which led to his demise and find that he could have acted a great deal more pro-actively to assist the respondent.

I found that the complainant was provided with a very broad platform to state his case, but he did not manage to persuade the decision makers to grant him a second chance during the disciplinary hearing. He seems to have been underwhelmed and distant in the entire process He is now fervently seeking that second chance.

In returning to Noritake

1 I am satisfied that the respondent believed that the complainant misconducted himself as alleged.

2 I am not satisfied that the respondent had reasonable grounds to sustain that belief, I found the Investigation to have serious shortcomings which ought to have been probed further. I found that the utter reliance on CC TV footage assembled by a client site over the direct evidence of a 26-year employee to be unsound without further probing. The absence of an agreed CC TV Policy was a key consideration for me here.

I also noted omissions in sharing the report of the disciplinary process of Oct 9 with either the complainant during the process or with me at hearing to amount to defensive and secretive rather than transparent practice. There were also several veiled references to background issues at HR which were reference but not substantiated.

3 I cannot agree that the dismissal was proportionate to the alleged misconduct. Whatever threat the respondent anticipated from the client site was remote rather than real. They do not appear to have carried out an onsite investigation which I found injurious to the complainant. The respondent did not lose business as a result. The client site was a customer of 4 months standing.

The complainant has made a significant contribution to his demise by his underwhelming engagement with his former employer during the events surrounding June 29. He admitted that he erred and apologised. I noted that neither party engaged in an active consideration of an attempt at mediation. Yet the company procedures lean in that direction.

I have found that the Disciplinary procedure became blurred by the criminal investigation from the very outset. I do not accept the complainant’s submission that the respondent should have awaited the outcome of the criminal process prior to dismissal.

I have also found that lines should have been drawn much sooner to distinguish both processes due to the vastly different standards of proof attached. I have also found that the respondent became overwhelmed by a perceived power of a client site which caused them to rush to the “nuclear option of dismissal “rather than a more proportionate sanction or retraining or rehabilitation for a long-standing employee. I have taken account that Mr C and Mr D found the Disciplinary procedures description of a final written warning for 2 years to be lacking in effectiveness.

I also found that the early direction to “include sexual assault “in the mix by Mr D to be misleading.

The decision to dismiss was outside the range of reasonable responses open to the respondent. I have not identified substantial grounds justifying dismissal. I find that the respondent may not rely on S 6(4) (b) on conduct.

I find that the complainant was unfairly dismissed, albeit having made a significant contribution to this outcome.

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

I have found that the complainant was unfairly dismissed. I have considered the options for redress open to me.

I do not see the options of re-instatement or compensation as reasonable or just in this case. I have reflected on the evidence adduced on loss and mitigation and the genuine reluctance expressed by the respondent on having the complainant back at work.

However, I find the equity of the case deserves an order for re-engagement to give an opportunity for the requested second chance.

I order the respondent to re-engage the complainant from January 1, 2020 on the following terms.

The period June 2019 to January 2020 will be considered for continuity of service.

The Complainant to be re-engaged on indirect work followed by a period of intensive training on customer care and mobile phone usage at work.

Progress in this to be reviewed conjointly within 1 year of this re-engagement in January 2021 with a view to returning to direct service.

Unfair dismissal