Complainant

Respondent

Anonymised Parties

Shop Assistant

Supermarket

Representatives

Ms. Sandra Carroll, E.C Gearty & Co. Solicitors

Self-Represented

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-00033323-001

20/12/2019

The Complainant commenced employment with the Respondent on 10th June 2007. At all times her role was that of “shop assistant” for which she received a set weekly payment of €225.00. The Complainant’s employment was terminated by the Respondent on the grounds of gross misconduct on 12th July 2019. The Complainant duly lodged a complaint with the Commission under the Unfair Dismissals Acts only on 20th December 2019.

A hearing in relation to this matter was convened and finalised on 3rd March 2020. During the hearing both parties made extensive submissions and provided oral evidence. Both parties availed of the opportunity to question the evidence of the other side as presented. No preliminary issues as to my jurisdiction to hear the present complaint were raised at any stage.

As the fact of dismissal is not in dispute the Respondent accepted the burden of proof as set out in the Acts.

As set out above, the Complainant commenced employment with the Respondent on 10th June 2007. At all times her role was described as “Shop Assistant”.

On the morning of 22nd May 2019, the Complainant became involved in an inappropriate interaction with a newly appointed trainee manager. On the morning in question, the trainee manager greeted the Complainant and her colleague in the normal fashion. Shortly after doing so, the Complainant’s colleague asked if he had moved a product she was charged with stacking. When he reported that he had, the Complainant’s colleague stated that he could not simply move her products around without her permission. At this point the Complainant approached the trainee manager and began to verbally abuse him.

Later that day the trainee manager approached the store owner and reported the incident. Following a period of reflection, the store owner decided to speak with the Complainant and her colleague in relation to the incident. When the Complainant was asked about the incident that morning, she advised that she did not like the trainee manager in question. When asked why she became involved in an incident that did not relate to her section of the store she stated that she simply informed the manager that he could not “move things around”.

Following this meeting, the store manager asked the trainee manager to provide a full written statement as to what occurred on the morning in question. The trainee manager’s account outlined that the Complainant made derogatory comments of a personal nature towards him, that she sought to undermine his professionalism and authority, and that she used extremely foul language whilst doing so. This account also outlined a second interaction between the Complainant and the line manager later that day. After the initial encounter, the Complainant approached the trainee manager and accused him of forcing her colleague to leave the employment. Again, this interaction was hostile in nature with personal insults and foul language being used throughout.

Given the serious nature of these allegations, the Respondent decided to utilise the services of a third-party HR consultant to conduct a formal investigation. On 31st May, the HR consultant conducted separate interviews with the Complainant and the trainee manager. During the interview with the Complainant, she denied making the statements as set out in the trainee manager’s account. She advised that she did tell the trainee manager to “F*** off, don’t talk to me”, but stated that she did not recall any other particulars of the conversation. She further stated that she did not shout at the manager at that time.

During the interview with the trainee manager, he confirmed the contents of his earlier written statement. He stated that the Complainant was loud and aggressive on the morning in question and that he was taken aback as he believed it was unprovoked.

On that date, the HR consultant also interview a further three witnesses. In the course of these meetings, one of the store owners and an employee situated at the butcher’s counter both stated that they observed the interactions and both corroborate the trainee manager’s version of events. Another trainee manager confirmed that the manager in question approached him directly after the incident and outlined what had occurred. Later that day, this witness reported that the Complainant approached him and made a statement to the effect that she considered him an informer to management. On receipt of this allegation, the Complainant was placed on paid suspension for the duration of the procedure.

In the interest of due process, the HR Consultant arranged a further meeting with the Complainant to allow her an opportunity to consider and respond to the witness statements and the additional allegation of approaching a witness to the investigation. In the course of this second investigation meeting, the Complainant again denied using foul language to the extent set out in the statements. She stated that she spoke to the manger in anger but that matters were being exaggerated and made to look worse than they were. She further denied speaking with the witness during the investigation or seeking to intimidate him in any way.

Following these meeting an investigation report was compiled and presented to senior management. This report recommended that the Respondent engage with the disciplinary procedure on foot of the same. The Complainant was duly invited to a disciplinary meeting for 9th July 2019 with the store owner who not previously involved in the investigation. In the course of this meeting the Complainant again denied speaking to the manager in the manner attributed to her by the witness statements. She stated that she had 12 years’ of service and had not been accused of anything like this previously. She stated that she had given her version of events during the investigation meetings and that she felt that she had been given an opportunity to establish her version of events.

On the 10th July 2019, the Complainant was invited to a follow-up disciplinary meeting for 12th July 2019. During this meeting the Complainant was presented with correspondence which stated that her employment was to be terminated on the grounds of gross misconduct. Although this correspondence expressly allowed for the right of appeal against the sanction, this was not engaged with by the Complainant and her employment terminated from that date.

In answer to a question, the store manager denied that he had prevented that Complainant from bringing a representative of her choosing. He stated that the company handbook expressly provided for representation by a trade union representative or fellow employee. When it was put to him that the invite to the disciplinary meeting simply stated “representative” he stated that this did not limit the complainant’s options in this regard. He also advised that the Complainant did not request to bring a representative at any point of the process.

In answer to a further question, the store manager denied that he failed to properly enumerate the allegations against the Complainant prior to the disciplinary meeting. He advised that the Complainant was aware of the allegations against her at all times and put forward her response to the same when requested.

When asked why CCTV footage of the incident was not included in the investigation, the store manager advised that this did not record sound and was of no value to the investigation.

Finally, the store manager confirmed that he had a personal relationship with the person charged with hearing the appeal on the disciplinary correspondence.

By response, the Complainant submitted the sanction of dismissal was disproportionate in the circumstances. She further submitted that the process utilised to affect her dismissal was fundamentally flawed.

On the morning of 22nd May 2019, the Complainant’s colleague enquired as to who had moved products from her area. While the Complainant did not know, she advised her colleague to speak with management, as this had occurred on a number of occasions. After this conversation, the Complainant’s line manager approached her and a verbal altercation ensued. The Complainant accepted that she swore at her line manager during this conversation but denied that she did so to the extent set out in his subsequent complaint.

Later that day, the Complainant’s colleague approached her and stated that she was upset at her treatment by senior management following a discussion with her line manager. On foot of the same, the Complainant again spoke with her line manager. Whilst the Complainant also conceded that this conversation was heated, she denied speaking to her line manager in the manner set out in his later complainant.

During the subsequent investigation meeting, the Complainant met with the third-party investigator and put forward her version of events. During this meeting, she denied speaking to her line manager in the manner alleged and stated that she could not recall many of the specifics of the conversation. She further stated that she did not like the manager in question and that he displayed a poor attitude towards her and other long-serving members of staff.

During the second investigation meeting, the Complainant disagreed with the content of the other witness reports and again denied speaking to her line manager in the manner ascribed. When the allegation of intimidating a witness after the first investigation meeting was put to her, she denied doing so and stated that she could not recall the conversation in question.

The Complainant stated that the disciplinary meeting was brief. In the course of the same, she again denied making the comments ascribed to her but again conceded that she spoke to her line manager in an angry fashion. When asked why she did so, she replied that he displayed a poor attitude prior to becoming a manager and that this continued when he was promoted. She further stated that the witness statements were incorrect and were exaggerated to reflect poorly on her.

When the Complainant was invited to a further disciplinary meeting she believed she would have another opportunity to put forward her version of events. Instead, she was surprised when she received correspondence which informed her that her employment was terminated.

The Complainant stated that the sanction of dismissal was inappropriate in the circumstances and that she did not deserve to lose her job over a minor incident. In answer to a question the Complainant stated that she did not appeal the sanction as she felt that she would not get a fair hearing and that she was exhausted by the process to date.

By submission, the Complainant’s representative stated that the procedure adopted by the Respondent was fundamentally unfair and did not respect the Complainant’s rights. In particular, it was submitted that the invite to the disciplinary meeting sought to restrict the Complainant’s right of representation. In this regard, it is noted that the Respondent’s handbook allows for representation for representation by a “work colleague or trade union official” but that “any other person unconnected with the store” was not permitted to act as a representative. It was further noted that while the invite to the investigation meeting allowed for representation by “a work colleague or representative of your choice”, the invite to the disciplinary refers to “you or you chosen work colleague” only. It was submitted this wording disallowed the Complainant to be have legal representation during the hearing, in contravention of her rights. The Complainant opened the case of Lyons -v- Longford and Westmeath ETB in support of this contention. The Complainant further submitted that the Complainant was not informed of her right to cross examine witnesses as set out in Lyons.

Regarding the investigation, the Complainant’s representative submitted that this was selective and did not include all information that might assist the Complainant. In particular, the CCTV footage viewed by the Respondent should have been disclosed to the Complainant during the investigation and prior to the disciplinary meeting.

Regarding the disciplinary meeting, it was submitted that the allegations set out on the invite letter were imprecise and did not allow the Complainant to fully prepare a defence to the claims. It was further submitted that the second allegation, that of seeking to intimidate a witness so as to alter the outcome of an investigation was not contained at all.

The Complainant’s representative submitted that the accumulation of the foregoing points rendered the disciplinary process fundamentally flawed and consequently the dismissal was unfair for the purposes of the Acts. The Complainant further submitted that the sanction of dismissal was disproportionate in the circumstances and that a lesser sanction was warranted.

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….”

The matter of Noritake (Irl)Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

• “Did the company believe that the employee misconducted himself as alleged?

• If so, did the company have reasonable grounds to sustain that belief?

• If so, was the penalty of dismissal proportionate to the alleged misconduct?”

In the present case, the Respondent has asserted that they acted reasonably in dismissing the Complainant on the grounds of gross misconduct, and as such the Complainant’s application under the Acts must fail. In the alternative, the Complainant has submitted that the Respondent acted inappropriately in conducting an improper investigation, failing to observe the Complainant’s rights throughout the process and issuing a disproportionally severe sanction in light of the severity of the wrongdoing. In effect, they allege that the dismissal was procedurally and substantively unfair and consequently represented a breach of Section 6 of the Act.

The Complainant has alleged that the Respondent did not facilitate her right to representation throughout the process. In this regard, it was alleged that the correspondence to the Complainant seemed to permit representation by a work colleague only in contravention of her rights, as established by recent case law of the Superior Courts.

On a purely factual basis, it is not apparent that the Respondent delimited that Complainant’s right to representation in any way. While the Respondent’s handbook does permit representation by a fellow colleague or trade union representative, I note that the invite to the investigation meeting allows for representation by a “work colleague” or “representative of your choice”. On a plain reading of this term, it clearly allows for an unlimited spectrum of potential representatives.

The subsequent invite to the disciplinary meeting states that “if you wish you may bring a representative to the hearing to provide you with support”. The letter goes on to state that if “you or your chosen work colleague is unable to attend the hearing you are asked to contact me as a matter of urgency”. It is the Complainant’s contention that this second section seeks to delimit the Complainant’s choice of representative to work colleagues only.

Having regard to the totality of the evidence presented, I do not find that this is the case. The correspondence to this point clearly demonstrates that the Complainant was entitled to bring any representative she wished. While the latter part of the correspondence does refer to a work colleague only, it does so as an example of a representative and is not meant to set out an exhaustive list of potential representatives. While the wording in this regard may not have been particularly clear, I note that the Complainant did not query this at the relevant time, or indeed seek to involve a representative at any stage of the proceedings.

The Complainant has also alleged that the Respondent’s failure to allow her cross examine witnesses represented a further breach of fair procedures. In this regard, the Complainant sought to rely on the matter of Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272. Here, the High Court stated that,

‘it is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence’.

Having regard to the same, it should also be noted that in the case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332 the High Court stated as follows,

"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”.

The Court went on to state that,

"... in this case there was a large measure of consistency between the basic facts as asserted by the personal assistant and the plaintiff's account of what happened ... There was a conflict as to the demeanour of the plaintiff towards the personal assistant. The essential question is whether, given the refusal of the personal assistant to submit to being questioned at a disciplinary hearing by or on behalf of the plaintiff, the plaintiff was likely to be exposed to the risk of an unfair hearing or an unfair result.

The type of disciplinary process which was being implemented ... does not lend itself to the application of the principles of natural justice in the manner in which they would be applied if the plaintiff had been entitled to a hearing by an impartial tribunal, which was not the case.

On the specific arguments advanced by the plaintiff in this case, in my view, the plaintiff has not established that he was not afforded fair procedures by reason of the fact that there was no opportunity for him or his representative to question the personal assistant. The factual dispute which the investigation identified, in my view, did not indicate that it was necessary in the interest of fairness to afford such opportunity."

In the present case, the Complainant accepted that she was involved in two confrontations with her line manager. She further accepted that she was angry and verbally abused the manager in question during these interactions. What was disputed was the specifics of some of the remarks attributed to her and the number of times she swore at the manager. In this regard, the present factual matrix is analogous to that set out in Shortt above. I also note that the Complainant did not request an opportunity to cross examine the witnesses at any stage of the proceedings. In the recent matter of of Dunnes Stores -v- Karen Walsh UDD 2021 the Labour Court found that such a failure to request cross examination is a relevant criterion in determining whether an absence of cross-examination represents of procedural flaw. Indeed, it cannot be said that cross-examination of witnesses was refused, rather the issue is that the Respondent did not offer the same in the absence of a request to do so. Having regard to the totality of the evidence presented and the case-law quoted above, I find that the absence of cross examination did not interfere with the Complainant’s right to a fair hearing.

The Complainant further alleged that the Respondent conducted an improper investigation. In particular, they alleged that the Respondent viewed CCTV footage of the incident and did not disclose the same to the Complainant during the investigation or prior to the disciplinary meeting. By response, the Respondent stated that the footage in question was not relevant to the investigation. They stated that this CCTV footage simply displayed the Complainant speaking with her line manager on the two occasions that were the subject of the investigation. As the footage did not contain any audio recording, it could not be determined what was said during the interactions. As this was the relevant issue, they determined that the CCTV footage was not relevant to the investigation.

As set out above, the Complainant conceded that the two alleged interactions occurred, what was disputed was what was said during those interactions. I this regard I agree with the Respondent to the extent that, with this particular set of circumstances, the CCTV footage would not have materially affected the outcome of the disciplinary procedure. Nevertheless, the footage should have been made available to the Complainant, or at least offered to her, as part of the process. In failing to do so, the Respondent assumed that the footage would not have advanced the Complainant’s defence. While this may well have been the case, it was for the Complainant to reach this decision in the absence of interference on the part of the Respondent.

Finally, the Complainant alleged that the sanction of dismissal was inappropriate and overly severe in the circumstances. The Complainant stated that she had twelve years of unblemished service with the Respondent and had been dismissed on foot of an isolated incident, that was exaggerated by the witnesses. The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

In the present case, the Respondent was presented with witness evidence of three persons stating that the Complainant subjected her line manager to verbal abuse of a personal nature on two occasions. Two of these statements (excluding the line manager’s own complaint) were eye-witness accounts of what occurred. While the Complainant admitted to speaking to her line manager in an angry and inappropriate fashion, she denied the extent to which she was said to have done so. In this denial, she did not offer an alternative version of events, but simply stated that she could not recall the specifics of the conversation. Having regard to the totality of the evidence presented, I find that the Respondent was correct to find that the Complainant subjected to line manager to verbal abuse in the manner attributed to her in the witness statements.

It is clear that subjecting a colleague to such abuse in the workplace constitutes unacceptable behaviour and cannot be tolerated by a reasonable employer. This misconduct is rendered all the more severe by the fact that it was directed towards a newly appointed line manager. A company cannot operate without mutual trust and respect between management and staff. While a staff member may legitimately have issues with a member of management, the Respondent has extensive processes and procedures to resolve the same.

In the circumstances I find that the Respondent acted reasonably in dismissing the Complainant. In so finding, I note that the procedure adopted in relation to the same was not without its faults, but these did not serve to imperil to the Complainant’s right to a fair hearing.

In reaching this decision I am also conscious of the fact that the Complainant did not engage with the appeal expressly provided on the letter of dismissal. In the matter of An Employee v An Employer ADJ 0000381 the Adjudication Officer stated that:

‘An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction”.

In the present case, each and every one of the issues raised by the Complainant during the hearing could have been raised, and potentially rectified, during the appeals process, should the same have been engaged with.

Having carefully considered this case in detail I have decided that the complaint as presented is not well-founded and therefore fails.

I find that the complaint is not well founded and consequently the Complainant’s application fails.

Gross Misconduct, Cross Examination, Right of Representation, Appeal