Complainant

Respondent

Anonymised Parties

General Operative

Fuel Production Company

Representatives

Mr. Seamus McNamee, Congress Information Centre

Mr. Michael O'Sullivan, Arra HRD

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00027816-001

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00027816-002

16/04/2019

The Complainant commenced employment with the Respondent on 1st August 2006. At all times his role was that of fork lift operator. During the currency of the Complainant’s employment he worked 40 hours per week, for which he received a weekly salary of €506.00. On 8th March 2019, the Complainant’s employment was terminated by the Respondent on the grounds of alleged gross misconduct.

On 16th April 2019, the Complainant lodged complaints under the Unfair Dismissals Acts and the Minimum Notice and Terms of Employment Act with the Commission. Following an adjournment, a hearing in relation to these matters was convened for 3rd December 2019. A second day of hearing was initially convened for March 2020- however this was adjourned as a result of the restrictions arising from the Covid-19 pandemic. A further hearing was convened for 15th September 2020, on which date the matter was finalised.

As dismissal as a fact was not in dispute, the Respondent accepted the consequent burden of proof and presented their case first. No objections as to my jurisdiction to hear the claim were raised at any stage of the hearings. Both parties produced written submissions and presented witnesses for direct and cross examination.

In late January 2019, management of the Respondent organisation were informed of four items of graffiti that had appeared at various locations within the premises. Of these drawings, two made derogatory comments of a personal nature relating to one of the senior managers of the Respondent. The other two contained profane language and were situated in clear view of visitors to the premises.

On receipt of this information, the managing director informed staff during an informal morning briefing that such actions were unprofessional and requested that the perpetrator come forward. When this did not occur, the managing director commenced an investigation into the origin of the graffiti. On the morning of 1st February, the managing director commenced interviews with eight members of staff in relation to the same. Of these staff members, two stated that they did not see the graffiti in question. The other employees interviewed stated that they noticed the drawings appearing over 22nd & 23rd January 2019. Three members of staff stated that following the informal meeting, the Complainant approached them individually and asked their opinion regarding the issue. Of these, one stated that the Complainant admitted to one of the items of graffiti but denied the rest. Another stated that the Complainant asked him whether he thought the drawing were “a bit of craic” and stated that he believed that management were taking the matter too seriously. A third witness stated that the Complainant approached him and advised that the manger in question “deserved everything he got”. When the Complainant was interviewed during this preliminary investigation, he stated that he did not notice the three of the offending items at all. He further stated that he did see one of the pieces of written graffiti but could not remember when he first encountered same.

Following this preliminary round of interviews, the managing director invited the Complainant to another investigation meeting for 11th February. The Complainant was placed on written notice of this meeting and was advised of his right to have “someone attend alongside you”. During this meeting, it was put to the Complainant that one of his colleagues had stated that he approached him and admitted to one of the acts of graffiti. At this point, the Complainant accepted that he was responsible for one of the acts alleged, namely writing a profane message on a yellow traffic cone. When asked why he has denied that same at the previous meeting, he advised that the Respondent was trying to “pin this whole thing on me”. In the course of the meeting the other witness statements were put to the Complainant, all which he denied. While the Complainant accepted he was responsible for one item of graffiti, he denied any involvement in any of the other offending items. At the end of the meeting, the managing director stated that he would pass the information gathered to the Director for the next stage of the procedure.

On receipt and review of the investigation documents, the director invited the Complainant to a disciplinary meeting for 1st March 2019, again this invite allowed the Complainant to “have someone attend with you”. During this meeting, the Complainant stated that he had written on the cone in an effort to promote health and safety on the site. He further stated that the cone was displayed in a prominent position for at least six months prior to the investigation without any issue being raised. The Complainant again denied any involvement in the other matters and denied approaching the other members of staff as alleged. Following this meeting the director issued correspondence to the Complainant enclosing copies of all the witness statements and inviting the Complainant to comment on the same in writing if required.

On 8th March 2019, the director issued his findings.   Here, he found that the defacing of the cone represented malicious damage to company property. The director further found that in circumstances whereby the Complainant initially lied about defacing the cone, the trust and confidence in the employer-employee relationship had been eroded.   In such circumstances the director found that it was reasonable to assume that the Complainant was not being truthful in denying any involvement in the other acts.   Given that all the graffiti had appeared within the same two-day period, the director found that these were all related and authored by the Complainant. In light of the foregoing, the director found that the conduct complained of constituted gross misconduct and the sanction of dismissal was warranted.

On 11th March, the Complainant elected to appeal this decision, with an appeal hearing duly being convened for 20th March 2019. Given that all members of senior management had been involved in the process to date, this appeal was chaired by an independent HR Consultant. Following this process the initial finding of the four items of graffiti being “related and authored by the same individual” was upheld. It was further found that such action fell in line with the Respondent’s definition of gross misconduct. In light of the foregoing, the sanction of dismissal was upheld and the Complainant’s appeal was dismissed.

In answer to a question, the managing director denied that he was an inappropriate person to conduct the investigation meeting, given that two of the items of graffiti reffered to him personally. He stated that he was best placed to conduct the meeting as he had knowledge of the day to day operations of the site and would be best placed to interview the relevant staff members.

In answer to a question, the director denied that he prevented the Complainant from bringing a representative to the disciplinary meeting. He stated that the wording of the correspondence in question expressly allowed for the right of representation without any limit in relation to the same.

In answer to a further question, the director confirmed that the Complainant did not receive the witness statements until after the disciplinary hearing. When asked why he did not re-convene the disciplinary hearing when he became aware of this, he stated that he allowed the Complainant the opportunity to make comment on the statements in writing prior to making his decision.

Finally, in response to a question, the director confirmed that he was contacted as part of appeals process. He that at this point he stated that he included “previous performance issues” as a consideration in applying the sanction of dismissal. The Director stated that this was not the primary reason for the Complainant’s dismissal but that it formed part of factual matrix to the Complainant’s dismissal.

At the outset the Complainant’s representative submitted that the dismissal was both procedural and substantively unfair.

Regarding the procedural deficits, the Complainant’s representative advised that the Complainant was not advised of his right of representation as confirmed by recent determinations of the superior Courts. In this regard, the Complainant’s representative submitted that the right of representation did not expressly refer to a right of representation by a trade union official and as such, the Complainant did not avail of adequate representation until the appeal process.

The Complainant’s representative further submitted that the Respondent’s investigation constituted a “fishing expedition” designed to implicate the Complainant. It was submitted that this was evidenced in the failure of the Respondent to make the relevant witnesses available for cross-examination during the process. The Complainant’s representative was also critical of the failure of the Respondent to submit the witnesses to cross examination at the hearing of the matter.

The Complainant’s representative stated that the failure of the Respondent to issue the witness statements and relevant documentation in advance of the disciplinary meeting, constituted a procedural flaw. Similarly, it was submitted that the consideration of previous performance issues disallowed the Complainant to opportunity to respond to and defend the same.

On the substantive ground, the it was submitted that the Complainant was in fact innocent of the misconduct attributed to him. In evidence the Complainant denied any involvement in three of the four items of graffiti. He stated that he drew on the traffic cone, but that he had done this a number of months prior to the disciplinary meeting and that this had been displayed in a prominent location throughout the time. The Complainant stated that he drew on the cone as visitors would often come to the site without wearing a high visibility jacket in contravention of the health and safety rules. The purpose of the writing on the cone was to advise the same that they should wear protective clothing at all times.

The Complainant advised that he did not have any involvement with the others matters that constituted that subject matter of the disciplinary hearing. He further denied approaching the other members of staff in the manner ascribed to him.

In an answer to a question, the Complainant stated that the minutes of the investigation meetings with him were correct and accurate. In this regard, the Complainant confirmed that he initially stated that he did not draw on the cone, and later accepted that he had done so. When asked to account for this this discrepancy, he stated that he was concerned that the Respondent was trying to blame on matters on him, when he was innocent of the majority of the them.

In answer to a further question, the Complainant confirmed that he had written a profanity on the traffic cone. He also confirmed that he had not raised a formal grievance with the Respondent in relation to the issue of the absence of protective clothing on the site.

In summation, the Complainant’s representative stated that the Complainant was innocent of the majority of the allegations against him. He submitted that the Respondent had capitalised on the appearance of the graffiti to dismiss the Complainant for unrelated performance matters. It was again re-iterated that the process adopted in dismissing the Complainant was fundamentally flawed and did not respect his contractual or natural rights. Finally, it was submitted that even if the Complainant was guilty of all the acts attributed to him, the sanction of dismissal was inappropriate and overly severe. In this regard it was noted that the Complainant was a long serving member of staff and did not have any disciplinary warnings on file at the relevant time.

Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed….not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) provides that,

“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 [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

“(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….with the procedure….or with the provisions of any code of practice….”

Regarding the present case, the Respondent has asserted that they acted reasonably in dismissing the Complainant on the grounds of misconduct. In doing so, they submitted that they complied with the relevant contractual provisions, codes of practice and the Complainant’s legal entitlements. They further submitted that in light of all the circumstances, the sanction of dismissal fell within the band of reasonable responses available to them. Having regard to the foregoing, it was submitted that the Complainant’s dismissal was not unfair for the purposes of the Acts, and consequently his application should fail.

In the alternative, the Complainant has submitted that the Respondent acted inappropriately in conducting an improper investigation and failing to observe the Complainant’s rights throughout the process. They further submit that the Complaiant did not commit the majority of the acts attributed to him and that the sanction of dismissal was inappropriate having regard to the misconduct alleged and admitted. In effect, the Complainant submitted that his dismissal was procedurally and substantively unfair and consequently represented a breach of the Respondent’s obligations under Section 6(6) of the Act.

In the matter of Iarnród Éireann/Irish Rail V McKelvey [2018] IECA 346 the Court of Appeal enunciated the following principles of fair procedures as applied to an internal disciplinary process:

“(i) [the] right to know the nature of the complaint/allegation made against him;

(ii) [the] right to know the procedure to be followed in the course of the investigation;

(iii) [the] right to know the potential implications of the complaint/allegation should it be established, i.e. the sanction/sanctions that might be imposed;

(iv) [the] right to be heard in relation to the complaint/allegation and to make representations in relation thereto;

(v) [the] right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses;

(vi) [the] right to call witnesses in support of his stated position”.

The Court of Appeal’s judgement was approved by the Supreme Court in the matter of Barry McKelvey -v- Iarnrod Eireann [2019] IESC000. Here Charleton J. made the following comments relating to the conduct of a disciplinary process:

“Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal…Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making defence to the allegations made against him…”

In the present case, the Complainant contends that the Respondent’s failure to properly inform him of his right to representation prior to the disciplinary meeting constituted a procedural flaw. In this regard, I note the Respondent’s disciplinary policy states that an employee has the right to have “someone in the room representing them”. The letters inviting the Complainant to the disciplinary meeting likewise stated that the Complainant was entitled to have “someone attend the meeting with you”. It is the position of the Complainant that the failure to expressly list a trade union representative or fellow employee prevented the Complainant from arranging suitable representation. Having regard to the totality of the evidence presented, I do not find that the Complainant’s right of representation was impeded in any way. The Complainant’s contract of employment and the invite letters clearly allow for an apparently unlimited right of representation, including trade union representation. Indeed, it is apparent that the Complainant availed of such representation during the appeal process without any issue being raised by the Respondent.

The Complainant has also stated that the Respondent’s failure to provide the relevant witness statements in advance of the disciplinary hearing constituted a procedural flaw. In this regard I note that the Complainant did not have sight of the written witness statements until after the disciplinary hearing had concluded. The Respondent sought to correct this omission by issuing the same to him after the meeting with a request that he comment on the same in advance of any decision being issued. In effect, during the disciplinary meeting, the witness statements of the other employees were summarised by the chair of the meeting with the Complainant being asked for his immediate comment. This clearly represents a breach of fair procedures as outlined in the case-law cited above. The Complainant should have been afforded the opportunity to review these witness statements in advance of the disciplinary meeting. It is only following this review that the Complainant would have been in a position to respond properly to the allegations made against him. In addition to the foregoing, I also find that the Respondent’s belated issuing of the statements does not serve to cure this defect or remove the element of unfairness. The correct time for the Complainant to contest and dispute the content of the minutes is either during the disciplinary meeting or prior to the same. If the Respondent believed that the witness statements formed an integral aspect of the disciplinary process, the oral hearing should have been re-convened to allow for his comment in relation to the same.  

I note that the Respondent’s procedure allowed for a full de novo appeal, which the Complainant availed of. However, I further note that in response query from the chair of the appeal, the chair of the disciplinary stated that he original decision was, at least in part, influenced by the Complainant’s prior performance issues. These issues were not referred to in the invite to the meeting or discussed at any stage during the disciplinary meeting itself. A consequence of the same, it is apparent that the decision to dismiss the Complainant was influenced by factors over which the Complainant did not have the right of response or was not notice of. Again, I find that this is manifestly unfair towards the Complainant and represents a breach of fair procedures.

While the Respondent submitted that the procedure was free of procedural breaches, in the alternative they submitted that the breaches alleged did not serve deny the Complainant a fair hearing and did not result in an unfair outcome. In the regard the Respondent relied on the following passage from the High Court case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332,

"the authorities ... make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee's employment and the circumstances surrounding the disciplinary action…The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result”.

Having carefully considered this submission, I cannot find in the Respondent’s favour. A Complainant’s ability to contest and adequately defend an allegation is dependent on his having possession of all material facts and evidence in advance of a hearing. The Respondent’s failure to ensure the same, along with the contemplation of matters not notified to the Complainant during the process, did not allow him “an adequate opportunity of making defence to the allegations made against him…” as stated by Charelton J. above. As a consequence of the same, I find that the procedural flaws did serve to imperil the Complainant’s right to a fair hearing.

Having regard to the totality of the evidence presented, and following a careful consideration of the same, I find that the Complainant’s dismissal was unfair for the purposes of the Acts and consequently his application is well founded.

Notwithstanding the foregoing, I note that Section 2(F) of the Acts empowers me to consider the “extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.” In this regard, I note that the Complainant accepted that he defaced company property and placed the offending item in a prominent area that was easily visible to visitors and clients. The Complainant’s candour in this regard is undermined by the fact that during the initial inquiry he informed that Respondent that he was innocent of any involvement in the matter. It was only when pressed on the matter at a later meeting that the Complainant accepted that he was responsible for the offending item. If the Complainant’s actions, however misguided, were intended for the benefit of the company as he later claimed, it does not stand to reason that he would seek to mislead the Respondent during this initial investigation.   Having regard to the foregoing, I find that while the Complainant’s dismissal was unfair for the purposes of the Acts, he significantly contributed to the same by virtue of his conduct both prior to and during the investigation process.

CA-00027816-002 – Complainant under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard, the Complainant stated that he “asked around” but that work was apparently difficult to come by following his dismissal. In the circumstances I find that this does not constitute a sufficient effort to mitigate his losses following his dismissal. Having regard to the foregoing, and the Complainant’s contribution to his dismissal, I award the sum of €3,000 in respect of his losses to date.

CA-00027816-001Complaint under the Minimum Notice and Terms of Employment Act 1973

It is common case that the Complainant was employed by the Respondent for almost 13 years. Section 4(1)(d) of the Act provides that an employee with an excess of ten, but less than fifteen, year’s continuous service is entitled to six weeks’ notice, or payment in lieu of the same.  

Notwithstanding the same, the Respondent sought to rely on the wording of Section 8, which provides that,

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

In the matter of J&D O’Brien -v- Raymond Morrin MND 194 the Labour Court stated that,

“…the dismissal of the Complainant has been determined to have been unfair and the Court cannot allow the (Respondent), by operation of the Act at Section 8, to avoid its obligations under the Act arising from the unfair termination of the Complainant’s employment.”

As the dismissal of the Complainant was deemed to be unfair, I find that the Respondent cannot rely of the provision of Section 8 of the Act and consequently I find that the Complainant’s application is well-founded.

Section 12 of the Act empowers me to award compensation for any loss sustained by the Complainant as a consequence of a contravention of the Act. In light of the foregoing, I award the sum of €3,036, or the equivalent of six weeks remuneration, in compensation.

Unfair Dismissals Acts, Minimum Notice and Terms of Employment Act, Procedural Fairness, Witness Statements, Right of Representation.