Complainant

Respondent

Anonymised Parties

A Former Employee

A Company

Representatives

SIPTU

Seán Ormonde & Co. Solicitors

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-00031875-002

29/10/2019

ADJ-00025066 was originally scheduled for hearing in conjunction with ADJ-00016402 and ADJ-00018653. The adjudication hearing commenced on the 3rd February, 2020 and resumed and concluded on the 9th March, 2020. The Respondent is a limited company in operation for some eighteen years and its business is the provision of community based training to members of the public. The Respondent is managed by its CEO and a voluntary board consisting of five members from the community. The Complainant was employed by the Respondent as an IT trainer on the 14th February, 2011. The Complainant’s contract was terminated on the 17th May 2019 and her complaint of unfair dismissal was received by the WRC on the 29th October, 2019.

In accordance with Section 6(1) of the Unfair Dismissals Act [1977-2017], the Respondent outlined its position that it had not unfairly dismissed the Complainant.

The Respondent outlined that there was a background of inter-personal issues in the workplace involving the Complainant. In that regard, the Respondent stated that the Complainant had submitted a grievance in 2017 which was not upheld. In January 2018, the Complainant and her Line Manager had engaged in a mediation process “in a bid to resolve inter-personal issues between them”. The Respondent stated that it understood the mediation process had concluded reasonably successfully as a mediation agreement was executed between the parties on the 10th January, 2018. However, inter-personal issues continued to surface and the Respondent stated that a tipping point was the unravelling “unilaterally” by the Complainant of the January agreement.

The Complainant’s Line Manager submitted a letter of grievance against the Complainant regarding alleged inappropriate behaviour dated the 31st March 2018. The Respondent stated that it engaged an external Investigator (a Barrister specialising in employment law) to conduct an independent investigation into the Line Manager’s complaint and furnish a report. The Respondent stated that the investigation was conducted in accordance with the Respondent’s bullying prevention policy and that Terms of Reference were agreed with the Complainant. The Respondent stated that the Investigator engaged with the Complainant, the Line Manager and several witnesses and issued a report which made several findings against the Complainant and upheld the Line Manager’s complaint in respect of these matters. The Respondent furnished copy of the Investigator’s report and the Terms of Reference.

The Respondent stated that the findings arising from the external Investigator’s report were sufficiently serious to warrant the instigation of disciplinary proceedings. In that regard, the Respondent referred to its letters to the Complainant of the 22nd March, 2019 which furnished the Complainant with the Investigator’s report and invited her “to meet to hear your thoughts on the report” and its letter of the 27th March, 2019 which advised the Complainant “As you know, we propose that a final meeting would take place in our offices on…..to allow you a final opportunity to comment on the attached Investigation report”. The letter of the 27th March went on to state:

Following this, should it be deemed appropriate, you may be invited to attend a further meeting with your employer. If that is the case, you will be entitled to be accompanied to any such meeting……You should be aware that the potential outcome…..could be disciplinary action up to an including dismissal. It is important to stress that no decision has been made about this investigation report”

A third letter was sent to the Complainant on the 29th March, 2019 from a member of the company’s board/board member A, which advised the Complainant that “The purpose of this meeting is to only hear your opinions on the findings of investigation conducted by [external Investigator] and give you to the opportunity to respond”.

The Respondent outlined that it had determined that two company board members – ie the CEO and another board member/B would comprise a sub-committee to deal with the disciplinary process. The Complainant was advised of who would be in attendance at the meeting and that she was entitled to be accompanied by a trade union representative or colleague. This meeting was held on the 11th April, 2019.

By letter of the 18th April 2019, the Respondent advised the Complainant as follows:

“Further to meeting held on the 11th April 2019 last…..I wish to advise you of the outcome of the disciplinary process……

You were given the opportunity to respond to the investigation report…..At this meeting you advised that you didn’t agree with the findings of the report, that you forgot to do a few things, that the report took many of your responses out of context and that you denied having acted in any way which was inappropriate or which could be construed as bullying.

I considered your responses along with all of the other pertinent factors before reaching my decision. The Company regards the conduct referred to in the investigation report as very serious. The report indicates to us that there was a pattern of inappropriate conduct and passive aggressive behaviour by you towards another work colleague. Some of these issues and your behaviour are in my view inappropriate and would constitute bullying or an affront to your work colleague’s right to dignity at work and this amounts to gross misconduct warranting summary dismissal. Having carefully reviewed the circumstances (including the fact that you have not accepted the wrongdoing), considered any alternatives to dismissal and having taken into account your submissions I regret to inform you that in my view you are guilty of the conduct alleged and that this conduct constitutes gross misconduct. I have decided that your employment with the organisation will be terminated with immediate effect. I have decided that your employment will be terminated on a no fault basis and that your dismissal will be on notice. You will be paid in lieu of your notice however your employment will end immediately.

You have the right to appeal against my decision….Should you wish to appeal…..a member of the Board who has not been involved previously in the process will be appointed to hear your appeal….”

The Complainant appealed the dismissal decision via her trade union SIPTU. Initially the Respondent stated that any such appeal would be dealt with by the WRC but following correspondence from SIPTU on the Complainant’s behalf, the Respondent determined that a second sub-committee of the board would be established to deal with the appeal – this comprised board members A and C. Thereafter, board member A wrote to the Complainant by letter of the 7th June, 2019 setting out the outcome of the appeal as follows:

“You have stated the grounds of your appeal…..I note that you did not introduce any new evidence and in fact it seems that the substantive matter you raised was that you feel that you have been unfairly treated in the procedure…., that there was some form of discrimination against you, that there was bias and ultimately that your conduct did not or could not constitute bullying type behaviour.

Having reviewed the investigation report, your appeal and the decision I could not find any evidence that the investigation was in any way prejudged or that there was any inappropriate delay……I believe that the Company has acted reasonably and in deference to your constitutional and contractual rights in doing so and I do not accept that there was any level of bias or pre-determination by either the investigator or the decision maker………In my view that determination of the decision maker was correct and while it is noted that your view is that the investigator did not make findings of fact against you, the role of the investigator was in fact to gather the facts upon which it was a matter for the decision maker to make findings……Having examined your submissions and considered all the pertinent factors including whether or not a lesser sanction would be appropriate….I have unfortunately decided to uphold the original decision being that of dismissal on grounds of gross misconduct…..”

Witnesses:

The Respondent adduced evidence from the following witnesses and the Complainant’s representative questioned these witnesses:

·       A long serving employee of the Respondent who gave evidence about the company, about her view of the staff relations difficulties involving the Complainant and she stated that the workplace atmosphere had changed for the better after the Complainant left. The Complainant’s representative put it to the witness that the staff relations difficulties should not solely be attributed to the Complainant;

·       An employee who had commenced in 2018 who gave evidence that she herself did not wish to become involved in the staff relations difficulties, that the Complainant had painted a very negative picture of the working environment and that she had advised the Complainant “to go legal” with her concerns which the Complainant’s representative clarified to be external HR advice;

·       The Line Manager who gave evidence about her time working with the Respondent, her role, the nature of the work and sources of funding. The Line Manager stated that she had interviewed the Complainant when she was appointed in 2011, that at the outset the relationship was good and the Complainant was “well competent”. The Line Manager stated that relations with the Complainant deteriorated from 2016 onwards, that in her view, the Complainant became more difficult to work with and she gave details of the difficulties she encountered which she stated consumed a lot of her time. The Line Manager also stated that the Complainant had informed her that she was suffering from depression. The Line Manager outlined that the Respondent had utilised the services of a HR consultant in late 2017 to assist with contractual issues involving the Complainant. The Line Manager stated that the main difficulties for her related to practical workplace matters such as attendance, notification of absences and general non-cooperation including the Complainant writing everything down and not communicating with her directly. The Line Manger also outlined an incident at the Christmas party of 2017. The Line Manager gave evidence in relation to the grievances initiated by the Complainant and the mediated agreement of the 10th January 2018. The Line Manager outlined why and how it got to the point that she was contemplating leaving the company as a result of the difficulties she was encountering in managing the Complainant. She stated that she endured anxiety as a result and that she felt she had no option but to make her complaint of the 31st March, 2018. The Line Manager stated that after she made her complaint she had no dealings with the process nor was she consulted about or aware of the decision to dismiss the Complainant until told by the Respondent. The Line Manager also gave evidence in relation to her own dealings with the external Investigator.

The Complainant’s representative questioned the Line Manager on her evidence including her alleged failure to address her complaint informally with the Complainant in the first instance and/or utilise the company’s grievance procedure. It was put to the Line Manager that none of the Manager’s alleged difficulties with the Complainant in relation to attendance and notification had resulted in the instigation of disciplinary procedures. The Complainant’s representative also questioned the Line Manager about her email of the 15th January, 2018 which she had sent to two members of the company’s board - including board member A. (The Complainant had obtained this email in the course of the investigation). The Line Manager The Complainant’s representative put it to the Line Manager that the contents of this email was discussed by the company’s board. The Line Manager responded that she left the board meeting for this discussion. In response to further questioning the Line Manager stated that she never met with board member A in relation to her complaint and that she lodged her complaint of the 31st March, 2018 because “matters were escalating”.   The Complainant’s representative put it to the Line Manager that the Complainant had not been at work during the period immediately prior to the Line Manager’s email of the 15th January 2018.

·       The Respondent’s CEO gave evidence that he joined the company’s board in April 2017 and became Chairperson in 2018. He gave evidence about the structure of the board and board meetings and stated that the board members – comprising five - were members of the community acting in a voluntary capacity who were not paid expenses. The CEO stated that he was aware of the staff relations difficulties, that he didn’t have much to do with it on a day to day basis and that he/the board did everything they could including utilising the services of a HR consultant. In relation to the Line Manager’s email of the 15th January, 2018 and her complaint of the 31st March 2018, the CEO stated that the board sees the Line Manager “as crucial….there for eighteen years….in trouble if [Line Manager] resigns re ongoing viability of the organisation”. Accordingly, the CEO stated that the board felt matters had to be addressed. The CEO stated that the Respondent then obtained legal advice on foot of which they employed the external Investigator. The CEO stated that the board received the report of the Investigator in early 2019 and set up a subcommittee consisting of himself and board member B to consider the findings and meet with the Complainant. The CEO stated that what emerged from the Investigator’s report was a “pattern of passive aggressive behaviour and bullying attributed to [Complainant]” and that the decision to dismiss was based on the contents of the report. The CEO stated that a second sub-committee comprising two other board members – A and C – was established to deal with the Complainant’s appeal and that it was a paper appeal.

The Complainant’s representative questioned the CEO including in relation to the findings of the Investigator’s report, in respect of the eighteen complaints identified by the Investigator and she put it to the CEO that the Line Manager’s complaints had not been found to have been upheld or not upheld. The CEO responded that in his view, taking the report as a whole – “in the round” - there was “enough there to make a decision”. It was also put to the CEO that he had received the Investigator’s report prior to the Complainant. He stated that they did not make the decision in advance of meeting with the Complainant. The CEO was also questioned about the appeal and why there had been no appeal hearing as per the company’s policy. The CEO stated that they had taken legal advice, had done their best and that it was a small board, there was only three people left who could conduct an appeal hearing and that people felt “intimidated”. The CEO accepted that the failure to provide an appeal hearing was a breach of company policy. Upon further questioning as to whether a lesser sanction was considered, the CEO stated that the decision of the disciplinary sub-committee and the appeals sub-committee was clear on dismissal.

It is the Respondent’s position that the dismissal was both substantively and procedurally fair. The Respondent stated that the Complainant was afforded representation throughout, that the findings arising from the investigation report were sufficiently serious to warrant the instigation of disciplinary procedures and ultimately the Complainant’s summary dismissal for gross misconduct. The Complainant was also afforded a right of appeal. The Respondent stated that its actions were justified in all the circumstances, that it acted fairly and reasonably and that the act of dismissal in itself, was not sufficient for the Complainant to succeed.

In addition to the various documentation exchanged between the Respondent and the Complainant, the Respondent also furnished the adjudication hearing with the following:

·       The Terms of Reference of the investigation conducted by the external Investigator

·       Copy of the external Investigator’s Report

·       The Line Manager’s complaint dated 31st March 2018

·       Respondent’s Disciplinary Rules and Procedures

·       Respondent’s Grievance Procedure

·       Respondent’s Bullying Prevention Policy

·       Respondent’s Equal Opportunities Policy

·       Respondent’s Personal Harassment Policy and Procedure

The Complainant alleged that she had experienced inappropriate behaviour regarding work issues from her Line Manager and that whilst she raised these issues they were never properly addressed by management – these included her unsuccessful attempts to question the issuing of new policies and contracts. The Complainant stated that she raised grievances in November 2017 and in January 2018. The Complainant’s grievances in relation to a contract of indefinite duration, bullying and harassment, sick pay, management approach and grievance procedure policy were the subject of an agreement reached between the Complainant and the Line Manager on the 10th January, 2018. The Complainant stated that the Line Manager did not adhere to the terms of this agreement. The Complainant raised further grievances on the 22nd May, 2018 in relation to the provision of a safe working environment, unfair treatment due to nepotism and favouritism, breach of the agreement of the 10th January, 2018, lack of adherence to confidentiality and that she found her Line Manager unapproachable.

The Complainant stated that she was asked to attend a meeting on the 17th July, 2018 and that she was not appraised in advance of the purpose of this meeting. In that regard, the Complainant referred to the letter she had received from the Respondent dated the 13th June, 2018 wherein she was advised that “Certain issues have been brought to my attention and I would like to meet with you…..to discuss these and consider how they should be addressed”. The Complainant’s representative SIPTU wrote to the Respondent on the 18th June, 2018 “seeking clarification on the nature of the proposed meeting” and asked “…is this to address [Complainant’s] grievances as set out to you in a letter dated May 22nd?”. It is the Complainant’s position that she was never informed in advance of the purpose of this meeting.

The Complainant attended the meeting on the 17th July, 2018 and was accompanied by SIPTU. The CEO and board member A attending the meeting on behalf of the Respondent. At the meeting the Complainant was furnished with the Line Manager’s complaint of the 31st March, 2018 and advised that an external investigator had been appointed to deal with the matter. Subsequently, on the 31st July, 2018 the Complainant received a letter from board member A, which inter alia, stated as follows:

“You will also be aware that issues have been raised with your conduct and performance by [Line Manager] and in particular it has been alleged that you have been engaged in inappropriate conduct towards [Line Manager] which if proved could be seen to be an affront to her right to dignity at work. I notified you of this when we met recently and I was disappointed by your response.

Given the gravity of the allegations we have nominated [external Investigator] to investigate them……

We note your concerns for your health and safety and given these and until these matters have been fully and properly investigated, you will not be required to work alongside certain other members of the team….

I would like to reassure you that this course of action does not mean that we have prejudged the outcome of the investigation or any subsequent disciplinary hearing which might arise therefrom. If proved however that there is any substance to these allegations you may be the subject of disciplinary action…..”  

It is the Complainant’s position that whilst the external investigator dealt with the Line Manager’s complaint, her grievances of the 22nd May, 2018 were not dealt with and for that reason, she contested the proposed external investigation process. The Complainant also maintained that the Terms of Reference of the investigation were not agreed with her and that she was only provided with the terms after the investigation had started and only a few days before she was interviewed. In this regard, the Complainant cited her email to the Respondent’s legal representative of the 22nd October 2018 and the reply of the 25th October, 2018. On the 22nd October, 2018, the Complainant sought clarification on the procedure being invoked in relation to the external investigation and also stated “I am happy to take part in any investigation but need to know the procedure and possible outcomes along with the terms of reference (as previously requested via email on 28/8/18) ahead of involving myself, as you will understand”. The Respondent’s reply advised that the external Investigator “shall revert to you shortly with regard to terms of reference” and also suggested dates for the Complainant to meet with the Investigator. The Complainant stated that notwithstanding these “procedural irregularities” she co-operated with the investigation process and provided a written response to the Line Manager’s complaint in or around September, 2018 and attended a meeting with the Investigator in or around November 2018.

The Complainant stated that in the course of the investigation, she obtained copy of the email dated 15th January, 2018 which had been sent by the Line Manager to two company board members - including board member A. In the email the Line Manager referred to grievances being personally aimed at her, that she was dealing with subtle bullying and she stated that “the only way I see going forward is either to let go the individuals in question…..or for [Respondent] to get a completely new manager….”. In the email the Manager requested voluntary redundancy. The Complainant stated that this email was sent only five days after the mediated agreement of the 10th January, 2019. The Complainant further stated that this email coupled with the Line Manager’s complaint of the 31st March 2018, effectively demonstrated that she/the Complainant was unfairly and deliberately targeted for dismissal.

The Complainant stated that by letter of the 22nd March 2019 the Respondent furnished her with copy of the external investigator’s report and requested a date for a meeting “to hear your thoughts of the report”. The Complainant received a further letter from the Respondent dated 27th March 2019 which advised the Complainant that the Respondent was proposing “…a final meeting….to allow [Complainant] to comment on the attached investigation report”. A third letter dated the 29th March 2019 was sent by board member A which advised the Complainant that “The purpose of this meeting is to only hear your opinions on the findings of investigation conducted by [Investigator] and give you the opportunity to respond”. The meeting was agreed for the 11th April 2019 and the Complainant stated that whilst she attended, she did not know it was a disciplinary meeting. She stated that she put forward her opinions on the Investigator’s report and was advised that it would be taken into account. The Complainant also stated that she was not asked any questions. The Complainant was accompanied at the 11 April meeting by her SIPTU representative.

The Complainant gave evidence in relation to the letter of dismissal of the 18th April, 2019. The Complainant stated that no specific incidents or details of misconduct were identified in the dismissal letter and further, that the Investigator’s report had not made any findings as regards bullying or a pattern of inappropriate conduct and passive aggressive behaviour. The Complainant outlined that the dismissal letter of the 18th April also advised the Complainant that she had the right to appeal “within five days of receiving this letter giving the full reasons why you believe the disciplinary action taken against you is too severe or inappropriate. Should you wish to appeal a member of the Board who has not been involved previously in the process will be appointed to hear your appeal”. The Complainant appealed the decision via her SIPTU representative and in that regard, her letter of appeal of the 26th April, 2019 included the following grounds:

·       Procedure and delays – the Complainant argued that the company’s grievance procedure was not followed, that the Complainant was not informed in advance of the meeting of the 17th July, 2018 of its purpose or as regards the investigation procedure to be followed and that it was only at the meeting of 17/7/18 that she received the Line Manager’s complaint of the 31st March, 2018. The Complainant also submitted that when she received the report of the external investigator on the 22nd March, 2019 she was invited to a meeting with management to “hear her thoughts on the report” which she attended on the 11th April, 2019, “there was no mention of it being a disciplinary meeting or that any disciplinary procedure had or would in fact commence” – accordingly the Complainant argued that she had been dismissed without “any disciplinary process having being instigated or followed at all and essentially as a result of an external investigation that unnecessarily took nine months to complete and did not follow any formal process”;

·       Findings of bullying and gross misconduct – that the external Investigator did not follow the company’s Bullying Procedure, that the conclusions of the Investigator did not warrant the Respondent’s finding that there was a “pattern of inappropriate conduct and passive aggressive behaviour…towards another work colleague…..[which]….are inappropriate and would constitute bullying or an affront to dignity at work and this amounts to gross misconduct warranting summary dismissal”. In that regard, the letter of appeal stated:

“….there are eighteen complaints against [Complainant] set out in the report. Each complaint is dealt with very clearly and in detail. At no stage does the author of the report make a finding of passive aggressive behaviour or conduct that would constitute bullying. In fact, the author clearly indicates that in nearly every situation surrounding each complaint that there was either a misunderstanding, miscommunication or oversight and that there was never any malicious intent on [Complainant’s] part. [Complainant] therefore requests that you reconsider how her behaviour falls into the definition of “bullying”…..”

·       Discrimination and Predetermined Outcome: that the Complainant’s concerns were never given any genuine consideration as opposed to the Line Manager’s complaint, that the Complainant had no previous disciplinary record and that the proposed sanction of dismissal was “grossly disproportionate to the circumstances and indicates a predetermined and discriminatory outcome from the outset”.

The Respondent initially advised the Complainant that her appeal should be referred to the WRC and in response, on the 17th May, 2019 SIPTU wrote again on the Complainant’s behalf seeking an internal appeal in accordance with the company’s disciplinary procedure. Thereafter, the Complainant was notified by letter dated the 7th June, 2019 from board member A, that her appeal letter had been considered and that the decision to dismiss had been upheld. The Complainant stated that she was not invited to attend an appeal hearing contrary to the company’s disciplinary procedures and the statement in the letter of dismissal of the 18th April, 2019. The Complainant stated that she was paid four weeks in lieu of notice thereby bringing the date of termination to the 17th May, 2019.

The Respondent questioned the Complainant on her evidence including in relation to notification of absences, punctuality, in relation to problems at work and in relation to the issues raised by the Complainant after the agreement reached on the 10th January, 2018.

Witnesses:

The Complainant adduced evidence from the following witnesses and the Complainant’s representative questioned these witnesses:

·       A former employee of the Respondent who stated that the Complainant was a brilliant tutor, that Management didn’t deal with issues as they arose or with staff relations difficulties and that the Complainant was not the cause of the problems in the company. The former employee stated that when she commenced in the company there was a harmonious atmosphere but that it was divisive when she left in 2018. The Respondent questioned this witness on her personal relationship with the Complainant;

·       A former employee who stated that she found the Complainant to be a very good tutor and that although the Complainant did not discuss her difficulties with the witness, she was aware of issues from office talk. She stated that the workplace atmosphere was not great irrespective of whether or not the Complainant was present.

It is the Complainant’s position that she was unfairly dismissed and that she was targeted for dismissal. In this regard, the Complainant maintained that arising from the Line Manager’s email of the 15th January, 2018 and her complaint of the 31st March, 2018 – the Respondent was put in the position where it could either retain the Complainant in employment or the Line Manger and that it opted for the latter. For this reason it is the Complainant’s position that “she didn’t stand a chance”. The Complainant also stated that the report of the external Investigator did not contain and findings as to whether the Line Manager’s complaints were either upheld or not upheld. The Complainant also argued that board member A who dealt with her appeal, had previous involvement with the case.

The Complainant maintained that the dismissal was unwarranted and disproportionate, that no proper or fair procedures were followed, that the employer breached its own disciplinary procedure, that the investigation was flawed, that the appeal process was flawed and that the Respondent never provided any explanation for its findings of misconduct “despite the severity of the sanction….”.

In support of her position, the Complainant cited the following cases:

·       Kerry Foods and Aisling Ryan - UD/16/52

·       IT Tutor and a Community Training Organisation - ADJ-00019429

·       Frizelle v New Ross Credit Union [1997] IEHC 137

·       Tesco Ireland v Laura Gannon – UD/2114/2010

The Complainant furnished a booklet of the various documentation relevant to her case including:

·       Copies of her letters of grievance of the 7th November 2017 and the 22nd May, 2018

·       Copy of the agreement of the 10th January, 2018 signed by her and the Line Manager

·       Copy of Line Manager’s email of the 15th January, 2019

·       Copy of Line Manager’s complaint of the 31st March, 2018

·       Copy of a one page document titled “Report on Meeting with [Complainant] on 17th July 2018 – which was sent to the Complainant by board member A on the 24th July 2018

·       Copy of   board member A’s letter to Complainant of the 31st July, 2018

·       Copies of the letters from Respondent to Complainant of the 22nd and 29th March, 2019

·       Copy letter of dismissal of the 18th April, 2019

·       Copy Complainant’s appeal of the 26th April, 2019

·       Copy   appeal outcome of the 7th June, 2019

CA-00031875-002

Section 6 (1) of the Unfair Dismissals Act [1977-2017] 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” - ie there is a statutory presumption of unfairness unless the Respondent employer can show there were substantial grounds justifying the dismissal.

Section 6 (4) of the Unfair Dismissals Act [1977-2017] states that the dismissal of an employee “shall be deemed…..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)      …..”

Section 6(6) of the Unfair Dismissals Act [1977-2017] 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)….. or that there were other substantial grounds justifying the dismissal”.

Section 6(7) of the Unfair Dismissals Act [1977-2017] provides that in determining whether a dismissal is unfair, regard may be had:

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

f)        to the extent (if any) of the compliance or failure to comply…..with the procedure….or with the provisions of any code of practice….”

As is clear from Section 6(7) the Act, I am   required to consider whether the Respondent dealt with its concerns in a reasonable manner in compliance with fair procedures and the company’s disciplinary procedure. The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns he/she may have about the poor performance or conduct of an employee and at the same time, to afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters.   I have summarised the requirements of SI 146/2000 as follows:

·       To comply with the general principles of natural justice and fair procedures;

·       That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·       That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

·       That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.

The case of Iarnród Éireann/Irish Rail V McKelvey [2018] IECA 346 concerned the matter of legal representation in a workplace disciplinary process. In addition to the right of representation, the Court of Appeal enunciated the following principles of fair procedures:

“(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 [2019] IESC 79 and Charleton J. made the following comments about 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 his [or her] defence to the allegations made against him [or her]…..”

I have carefully considered the extensive evidence and submissions of the parties with regard to the workplace issues which had arisen, the various exchanges between the Complainant and her Line Manager, all matters surrounding the instigation and outcome of the external investigation, and the Respondent’s application of its disciplinary and appeal procedures. At my request I was also furnished with the Respondent’s employee handbook and redacted copies of the minutes of board meetings – received on the 12th February, 2020.

Having regard to all the evidence and submissions and the legal principles outlined above, I have come to the following conclusions:

1.       There was on-going and unfortunate staff relations difficulties in the workplace. It is against this background that grievances and complaints were made. From the submissions – oral and written - presented to me, I find that the evidence is not persuasive that any such grievances or complaints were made in bad faith or were maliciously made. It is every employee’s entitlement to raise issues with their Manager and/or employer and I am satisfied the Respondent had adequate procedures in place for this purpose including a Grievance Procedure, a Personal Harassment Policy and Procedure and a Bullying Prevention Policy. I am also of the view, that the existence of these procedures did not preclude the Line Manager from submitting her complaint directly to her employer/the Respondent. The Respondent addressed the Line Manager’s email of the 15th January, 2018 and her subsequent complaint of the 31st March, 2018 by establishing an investigation to be conducted by an external Investigator. In my view, the Respondent was entitled to do this having regard to the background difficulties and was not bound to require the Line Manager to utilise the company’s Grievance Procedure. I am also satisfied from the evidence that it was made clear to the Complainant that she could address her grievances in the course of the investigation – and in my view this was a reasonable approach for the Respondent to adopt given the relative proximity in time between the Line Manager’s complaints of January and March 2018 and the Complainant’s grievances of the 22nd May, 2018. Whilst the Complainant has argued that the Line Manager’s email of the 15th January 2018 and complaint of the 31st March, “targeted” her for dismissal, I am not persuaded that the evidence supports this proposition and accordingly, I do not agree with the Complainant in this regard;

2.       The Complainant has asserted that the Terms of Reference of the investigation were not agreed with her and the Respondent has disputed this. In my experience it is best practice that in situations where an investigation is being established, that the parties are consulted about the Terms of Reference in advance – albeit that it may not always be possible to reach agreement. The sequence of emails of the 22nd October, 2018 wherein the Complainant sought clarity on the procedure and terms of the investigation and the Respondent’s reply of the 25th October, 2018 suggesting dates for meeting and at the same time stating that the Investigator would revert re the terms, lead me to the conclusion that there was no consultation with the Complainant about the terms in advance of the investigation commencing;

3.       The Respondent has submitted that the reasons for the Complainant’s dismissal were based on the outcome of the investigation report. In that regard, the CEO outlined in his evidence that the sub-committee of two which dealt with the disciplinary process, took the view that “in the round” - there was “enough there to make a decision” and this was conveyed to the Complainant in the letter of dismissal of the 18th April, 2019 which advised that - “The Company regards the conduct referred to in the investigation report as very serious. The report indicates to us that there was a pattern of inappropriate conduct and passive aggressive behaviour…..and would constitute bullying.…and this amounts to gross misconduct…”. With regard to this matter, I have carefully the Terms of Reference of the investigation report which state that the purpose of the investigation is to “….carry out a factual analysis…..and establish the full facts…” and that “The outcome of this investigation will only relate to establishing facts and will not make any recommendations as to whether the grievance should be upheld or dismissed….”. This is precisely how the report was presented, as for each of the eighteen complaints identified, there is no finding that the complaint is either upheld or not upheld. Nor does the Investigation report contain any finding that the Complainant engaged in bullying, or inappropriate conduct and passive aggressive behaviour. That being said, the Respondent in my opinion, was not precluded from coming to the view that these were the key issues and concerns that emerged from the report;

4.       Prior to the investigation commencing, the Complainant was made aware by letter of the 31st July, 2018 from board member A that disciplinary proceedings could ensue. The Terms of Reference of the investigation advised the Complainant that the commencement of any disciplinary process was a matter for the Respondent. The Respondent’s letter of the 27th March, 2019 also advised the Complainant that the potential outcome could be disciplinary action up to and including dismissal.  Having put the Complainant on notice that the investigation could result in a disciplinary procedure, the Respondent was entitled to instigate such a disciplinary procedure on foot of its concerns about the investigation report. Once it did so, the Respondent was then obliged to adhere to the legal principles governing the conduct of a disciplinary process already outlined. Having considered all the evidence and submissions, I am of the view that the conduct of this disciplinary and appeals process fell short of the essential requirements of fair procedures for the following reasons:

a.       The Complainant has stated that was not advised in advance of the meeting of the 11th April, 2019 that this was to be a disciplinary meeting which could result in her dismissal. In this regard, I note there is no mention of disciplinary in the Respondent’s letters to the Complainant of the 22nd and 29th March, 2019. In my opinion, the Respondent’s letter of the 27th March, 2019 was confusing as the letter firstly offered the Complainant “….a final meeting…..to allow you a final opportunity to comment on the attached Investigation report” but then went onto state that: “Following this, should it be deemed appropriate, you may be invited to attend a further meeting with your employer …You should be aware that the potential outcome…..could be disciplinary action up to an including dismissal…”. However, there was no further meeting after the 11th April 2019. In all the circumstances, I accept the Complainant’s evidence that she did not know the meeting was a disciplinary meeting. Therefore, I find that notwithstanding the prior notification to the Complainant that disciplinary action may ensue, given the pivotal nature of the meeting of the 11th April, as a matter of fair procedure the Complainant was entitled to specific and clear notification that this meeting was disciplinary and could lead to her dismissal;

b.       The Complainant has stated that she was not advised in advance of the meeting of the 11th April, 2019 of the specific charges or the specific matters under consideration by the Respondent. The letter the 22nd March 2019 requested a meeting with the Complainant “to hear your thoughts of the report”, the letter of the 27th March offered “a final opportunity to comment on the attached report” and the letter of the 29th March stated “The purpose of the meeting is to only hear your opinions on the findings of the investigation….”. The requirement for transparency in terms of an employees’ right to know the nature of the complaint/allegation made against her – is well established as outlined in the aforementioned legal principles. The Complainant was given no indication in advance of the meeting of the 11th April that the Respondent considered that the investigation report indicated a pattern of inappropriate conduct and passive aggressive behaviour on her part or that her conduct was deemed to constitute bullying or gross misconduct. I am of the view that it was not sufficient to simply furnish the Complainant with the report of the investigator and require her to interpret or construe what matters would give rise to consideration of the termination of her employment. As a result, I find that the Complainant was denied the opportunity to answer the specific charges of misconduct outlined in the dismissal letter of the 18th April, 2019 within the disciplinary process. Furthermore, as a consequence of the lack of advance notification, I also find that the Complainant was not afforded the opportunity to prepare her defence – including assembling relevant witness and possible cross examination – as stated in SI 146/2000 – an employee “has the right to respond and challenge evidence”;

c.       The Complainant has contended that the appeals process did not accord with the requirements of fair procedures or with the Respondent’s own disciplinary procedure. In the letter of dismissal of the 18th April, 2019, the Complainant was advised that she had “the right to appeal….Should you wish to appeal…..a member of the Board who has not been involved previously in the process will be appointed to hear your appeal….”. The appeal was conducted by board member A and another board member. From the evidence adduced, I am satisfied that board member A had several dealings with the case prior to the appeal – these included receipt of the Line Manager’s email of the 15th January, 2018, attendance at the meeting of the 17th July, 2018, furnishing the Complainant with a record of the meeting on the 24th July 2018 and A’s letter to the Complainant of the 29th March, 2019. In particular, I am concerned about the following statement from board member A’s letter to the Complainant of the 31st July 2018, which I consider raises an inference or perception of lack of objectivity:- “You will be aware that issues have been raised with your conduct and performance by [Line Manager] which if proved could be seen to be an affront to her right to dignity at work. I notified you of this when we met recently and I was disappointed by your response”.

Whilst I appreciate the difficulties for a small company in securing sufficient personnel to conduct disciplinary procedures, nonetheless, given the gravity of the consequences for the Complainant’s livelihood and reputation, I am of the view, that board member A lacked the necessary independence from the situation to render the appeal a separate and fair process. In addition, I note that the CEO of the Respondent accepted in the course of his evidence that the provision of a paper appeal to the Complainant did not accord with the Respondent’s own disciplinary procedure which provides for an appeal hearing and if necessary the appointment of an external person to hear an appeal.

In light of the foregoing, I find that the Respondent has not rebutted the presumption of unfair dismissal and I decide this complaint is well founded.

CA-00031875-002

Section 8 of the Unfair Dismissals Act, [1977 – 2017] 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, as amended.

Section 7 of the Unfair Dismissals Act [1977-2017] provides that redress may consist of re-instatement, re-engagement or compensation. Having heard from the parties in relation to the matter of redress, in the present circumstances, I decide that compensation is the appropriate remedy. The Complainant is required to mitigate her losses and to adopt a proactive approach in obtaining replacement employment. The Complainant is skilled in IT and she furnished copies of letters which indicate that at the time of the adjudication hearing, she had made several efforts in seeking alternative employment. The Complainant stated on her complaint form that prior to her dismissal, she was earning €170.00/week for 19.5 hours. Considering the foregoing and the Complainant’s financial loss, I award the sum of €10,000 for the unfair dismissal which I consider to be just and equitable having regard to all the circumstances. This amount is subject to any necessary statutory deductions as may apply.

Unfair Dismissal; Fair Procedures