Complainant

Respondent

Parties

Jevgeni  Rykov

Equinix (Ireland) Enterprises Limited

Representatives

Hugh O’Donnell, BL instructed by Stephen Reel, Brian Berrills & Company

Sinead Finnerty, Peninsula

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-00040246-001

05/10/2020

The complainant was employed as a technician with the respondent.  He commenced employment on 12/06/2017 and was dismissed on 19/06/2020.  He was dismissed following an investigation and disciplinary process which arose from a You Tube video he posted on Microsoft Teams internal group.  It was alleged that this video was racially offensive and in breach of the company policy in relation to such matters.  It was agreed between the partied that he was paid €3,353.41 per month gross.  He submitted his complaint to the Workplace Relations Commission on 05/10/2020 and is seeking compensation on the basis that he was unfairly dismissed.

The respondent operates as a data centre and colocation infrastructure provider.   The complainant was employed as a technician from 12/06/2017 until he was dismissed on 19/06/2020.  The respondent denies that the complainant was unfairly dismissed.

On commencement of employment the complainant was given details of his main terms and conditions of employment along with the employee handbook.  He acknowledged receipt of understanding of the policies and procedures as set out in a policy titled Global Usage Policy (AUP) on 31/07/2019.  The complainant also completed various training programmes all of which would have made him aware of business conduct, ethics and code training, health and safety matters and a mandatory training module called Security Awareness and Responsibility which includes the respondent’s acceptable use policy.

There was an incident on 30/04/2020 during which the complainant posted a comment on an internal social media platform.  [Adjudicator note:  in various papers submitted the date of this incident was listed as 04/05/2020 but during the hearing it was agreed that the correct date was 30/04/2020 and this should be used in any reference to this incident].  This comment was made in response to the promotion of some events by the respondent’s Pride Connect Group.  This comment was removed in line with respondent policy and the complainant had a call with a HR manager and another senior manager.  During this call the complainant took the opportunity “to educate and articulate their strategy, clarify the position of the company and address the accountability of employees of their behaviour including but not limited to posting on internal social media platforms.” 

The managing director of the respondent also spoke with the complainant and discussed this incident with him.  There was no formal warning, or any sanction issued to the complainant in relation to this matter.

Sometime after this incident the complainant’s manager set up an informal Microsoft Teams Group for his team.  This was done to encourage the members of the team to have some fun during the Covid-19 pandemic.  He named the group “SuperHappyFunTImes”. 

On 04/06/2020 the complainant posted a YouTube video on this group platform.  The complainant’s team leader viewed the video link and contacted his manager.  The team leader then communicated with the complainant to say that he had concerns that the video was offensive and asked the complainant to remove it.  The complainant disagreed but then removed the link. 

The IBX manager communicated with the complainant and advised that he would link with the HR manager.  Arising from this the complainant was suspended pending investigation of this incident. During this investigation it emerged that the complainant shared the link with two colleagues.  He also showed the video to a colleague who describes himself as a member of the black community.  He asked him if he thought it was offensive, but the colleague did not respond and left the area where he was being shown the video.  The investigation concluded that a disciplinary hearing should be convened.

At a disciplinary hearing on 10/06/2020 the allegations were again put to the complainant.  He acknowledged that until his suspension he did not see the video as racist and the video is still not racist to him, but he can see how other people could see it as racist.  He also confirmed that he shared the video privately with colleagues and contrary to the direction of his team leader.  On 19/06/2020 the complainant was advised that a decision was made to dismiss him for gross misconduct.

The complainant was advised of his right to appeal and submitted his appeal by letter dated 23/06/2020.  The appeals person wrote to the claimant requesting that he set out the grounds for his appeal and if he had new information that was not considered at the original hearing, or if he had any process issue or any point that was not correctly considered.

The complainant did not respond to this letter and the appeal person conducted a review of the papers and upheld the original decision to dismiss.  He outlined his reasons by way of letter dated 10/07/2020.  These were (a) the material posted was extremely derogatory and racially discriminatory in the future, (b) the risk of posting similar material in the future and (c) the incident on 30/04/2020 and (d) the duty of care to protect employees against possible discriminatory or harmful situations.

The respondent noted that they rely on Section 6(4) of the Unfair Dismissals Act, 1977 which states that:

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

(a)    […]

(b)    The conduct of the employee

(c)     […]

(d)    […]

It is the respondent’s position that the complainant was dismissed due to gross conduct following his posting of racially offensive contents on the MS Teams platform.  The complainant was afforded natural justice and fair procedure throughout the disciplinary process.  The respondent also relies on the EAT case of Hennessy v Reed and Write Shop Ltd, UD 192/1978 which outlines the general approach in respect of dismissals for conduct.  This test of reasonableness includes the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss and the conclusion arrived at by the respondent that, on the basis of the information resulting form such an inquiry the complainant should be dismissed.

The respondent also submits that their social media guidelines are clear and that the consequences of any violations are also clearly outlined.  In that context the complainant was aware that violation of the guidelines would result in termination of his employment.

A number of witnesses gave evidence on behalf of the respondent.

Ms A:  HR Manager.  Ms A outlined her role with the respondent and in particular she supports the Ireland HR directly.  She also provides input to the employee handbook.  She also provided details of the onboarding process and the various polices that employees are provided with. Some examples include the Code of Business Conduct; the AUP policy and the Cultural and Values of the organisation. 

Ms A gave a summary of the incident on 30/04/2020.  This platform is available to all staff across the globe.  The posting by the complainant was flagged and removed within a day.  This incident was followed up by his manager and HR manager and this involved an education process in relation to the organisation’s values and cultural norms.

In relation to the video posted by the complainant Ms A confirmed that she watched it.  In her view it was racially motivated, derogatory to different nationals and particularly derogatory to black communities.  She described the video as inappropriate and distinctly different. This video did not comply with their social media policy.  Ms A gave evidence that the complainant understood the purpose of the disciplinary meeting.  Hs position on the video did not change – it was his view that this was just a funny video although he did show some remorse for posting it.  Ms A also confirmed that the complainant did not adhere to the instructions not to contact team members or attend the workplace.  He contacted some colleagues from his phone and he turned up at the workplace.  Ms A confirmed that she had no role in relation to the other steps.  It was her evidence that all correspondence was sent to the complainant by e mail and also by courier to his home address.

Ms A was asked to outline the appeal process.  She confirmed that the appeal was sent to Ms B and a Mr C who wrote to the complainant seeking further details in relation to the reasons for his appeal. There was no further engagement from the complainant.  The Appeal then proceeded on the basis of the information available and the decision to dismiss was upheld. 

Ms A was asked if the posting of allegedly racist comment could impact on the wider organisation.  She said that it was her view that regardless of the organisation this video was highly offensive and not light in any way.  It was derogatory in so many ways.

Under cross examination Ms A outlined her employment history with the respondent and also her HR experience.  In relation to that training received by employees Ms A confirmed that this was standardised training.  Ms A also confirmed that the acceptable use policy was part of the security and awareness training and specifically targeted at security.

Ms A was asked about the post of 30/04/2020 and she confirmed that the outcome of this was to educate the complainant as he did not understand that it was not right to post the comment.  There was no disciplinary outcome and no formal sanction was issued.

Ms A was asked to explain why, if the outcome was informal, a record was kept, and the appeal person Mr C was aware of this.  Ms A explained that Mr C is her manager and that he was aware of the incident on 30/04/2020 as it was discussed.  Ms A was asked to outline her understanding of how an informal process was subsequently used and referred to in a disciplinary process.    Ms A said that it the incident was not used and not relied on in making the decision to dismiss the complainant.

Ms A was asked if she accepted that the video was freely available on the You Tube site and had been viewed approximately 6.5 million times and the artist in the video was well known. Ms A said that she accepted that was the case.

Ms A was asked about the sharing of the video on the MS Teams platform known as “SuperHappyFunTImes”, was established for social rather than work related matters, and that there were 15 people on the team and only people who were on the platform could view the video.  She confirmed that the use of the MS Teams platform was for social reasons.  Ms confirmed that the Team Leader saw the video and that it was taken down after a short period of time.

Ms A confirmed that the complainant had no previous disciplinary record.

Ms A was asked if she could clarify why the provisions of the investigation process as outlined in the employee handbook were not adhered to.  Specifically, an e mail from a colleague of the complainant’s (Mr H), sent on 05/06/2020 at 18.42 was not given to the complainant at any stage.  Ms A did not know why this happened and accepted that it was a breach of the policy.

Ms A was asked to explain how the appeal process works.  She confirmed that it is as outlined in the employee handbook and referred to the relevant section.  Ms A was asked if the appeal letter sent by the complainant on 23/06/2020 constituted an appeal and she confirmed that it was.  Ms A was asked if it was her understanding that an appeal in such circumstances constituted a de novo hearing and she confirmed that it was.  Ms A was asked why an appeal hearing was not arranged and she said that it was because the complainant did not respond to the letter sent to him on 29/06/2020.

Ms A was asked if she accepted that the respondent’s policy was unambiguous in relation to the appeal process.  There was no provision for a review.  She accepted that was the case.

It was put to Ms A that the appeal process was fundamentally flawed as there was no effective appeal process made available to the complainant.  She did not accept this but accepted that the appeal process was a most important part of the disciplinary process.

Ms A was if there were other sanctions considered and she confirmed that all sanctions were considered and based on the evidence obtained she feels that this incident amounted to gross misconduct and the sanction was correct.

Mr B: An IBX Manager.  Mr B confirmed that he is the data centre manager and manged 15 people at the time of the incident.  The complainant reported to him.

Mr B was asked to confirm details of the incident on 30/04/2020 and he outlined that a comment was posted on the platform.  It caused offence and all employees receive an e mail when something is posted so all employees could potentially view the comment.  He was made aware of the comment by the Team Leader and he spoke to the complainant.  The complainant did not initially agree with him as he felt that they were getting too many e mails from the platform.  He explained the perception of this comment and then discussed it with the HR manger.

Mr B was asked to outline how he manages policy compliance within the team.  He explained that there is an online training platform and his remit is to ensure that all employees complete their training in a timely manner.  In relation to the security training he confirmed that the training covers more than security and referred to the relevant sections in the policy.

Mr B was asked about the video posted on 04/06/2020 by the complainant and how he became aware of it.  He explained that the Team Leader contacted him.  The workplace is a 24/7 data centre and he created the “SuperHappyFunTImes” platform as a means of keeping spirits up.  He provided the hearing with examples of the light-hearted humour which would put a smile on your face.

In relation to the video itself Mr B confirmed that he viewed it immediately.  It referred to ethnic minorities and used the “N” work repeatedly.  It was derogatory in content.  From his perspective the use of the “N” work is totally unacceptable.

Mr B was asked what advice he gave to the Team Leader and he said that the Team Leader had acted by the time he contacted him.  The video was posted at 16.54 and removed by 15.12.  Mr B confirmed that the video was on the platform for a short period of time.  However, when posted a link goes to everyone on the platform.  There were four people working at the time.  Mr B confirmed that when the link was removed it was removed from all group members.  He was aware that it was sent to others on the team individually afterwards and this was also not acceptable.

Mr B was asked if the video was contrary to the respondent’s policies and he outlined that the language was unacceptable, and it had a particular focus on the black community.  He did not accept that any reference to it being a parody and confirmed that it was not comedy, used a term that is unacceptable, and he saw it as offensive.  Mr B made a reference to the relevant sections in the respondent’s policy which confirmed this view.  Mr B said that this video was quite extreme, and it was the worst he had seen on any platform.  It was “heavy watching” and as a manger it was offensive, derogatory and particularly at a sensitive time for the black community.

Mr B was asked to outline his telephone call with the complainant in relation to the incident.  He confirmed that he contacted the complainant to get his side.  The complainant did not see the video as offensive and saw it as a joke.  He did accept that it could be construed as racist.

Mr B confirmed his role at the investigation meeting on 10/06/2020 which was to explain the policy, and this was done in the context of the video.  Mr B was asked if he had any further dealings with the complainant and he explained that the complainant met him when he arrived at the workplace while on suspension to collect belongings.  Mr B also confirmed that since his dismissal the complainant was back in the workplace while working for a contractor.  He was respectful and there was no incident, but it was difficult for the team.

Mr B under cross examination confirmed his employment details with the respondent and confirmed that he had a good working relationship with the complainant.  Mr B was asked to confirm that the outcome of the incident on 30/04/2020 and he confirmed that it was informal, and no warning was issued.  He also confirmed that the training provided to the complainant after this incident was general in nature and not specific ethnic related training.

Mr B confirmed that he set up the platform for his team and its intention was purely to keep spirits up.  He may have had previous complaint about comments posted.  He confirmed that he was made aware of the video posted on 04/06/2020 when contacted by the Team Leader.  At that stage it was removed.  He subsequently obtained a link to the video and viewed it.  Mr B confirmed that there were five people working at the time the video was posted and that this was the maximum number of people who could have viewed it, but he had no evidence in relation to the actual number of views.

Mr B was asked about his telephone call with the complainant and the complainant thought it was funny. Mr B was asked if he accepted that the complainant posted the video “in good faith” and he accepted that the video stated at the beginning that it was a parody and Mr B also accepts that the complainant did find the video funny.  Mr B accepted that the video was “of a time” and that there were no restrictions or moderation put in place by You Tube.  While he accepted that Mr B was clear that he did not consider it a parody and that he found it offensive, it was in direct violation of the policy and was in poor taste.  Mr B did not accept that the complainant did not share it with anyone else and he did show it to another colleague.

In relation to the complainant attending the workplace while on suspension Mr B confirmed that this was to collect some personal belongings and no other purpose that he was aware of.

Mr C: an employee and former colleague of the complainant.  Mr C confirmed that he was worked on the same team as the complainant.  On the day of the incident he was working a 12-hour shift which began at 19.00.  There is a handover period between shifts.  He did not see the video before coming into work.  Mr C confirmed that he was shown the video by the complainant on a computer at work.  He said that as he was the only dark-skinned person he wanted his opinion on the video.  Mr C recalled that when the video started it was an uncomfortable situation as he was the only black person there.  He did not watch the full video on that occasion, but he got the name of the video and watched it later.

Mr C said that he found the video offensive and it made him uncomfortable.  He clarified this by confirming that the wording, images and stereotypes used in the video were offensive.  Mr C said that he was the only person from his community working in that professional environment and he felt that this video was unacceptable.  It was put to the Mr C that the complainant said that he laughed initially when he saw the video and he confirmed that he only watched a small part of it with the complainant and did not finish it.  He finished it when he got the name of it from a colleague and watched it later.  Mr C confirmed that he was aware that he and another colleague were shown the video by the complainant.

Mr C was asked if he had any communication with the complainant he said that the complainant contacted him on his phone and asked him if he found the video offensive.  He did not give a direct answer to the complainant.  Mr C said that the complainant told him he was suspended because of the video and that was the first he heard of the complainant’s suspension.

Mr C confirmed that he did not find the video funny and that he felt it was of a discriminatory nature and it was made for that purpose.  He never saw any other posts of this nature on the platform or on any of the other platforms.  Mr C confirmed that he had made minimal postings himself on the platform.

Under cross examination Mr C confirmed the starting times of the shifts and that people usually arrive five minutes or so early to facilitate handover.  Mr C confirmed that he is still working for the respondent.  He also confirmed that he did not see the link to the video and that the complainant was showing it to him on a computer in an office.  He confirmed that he watched about 30-40 seconds of this video. 

Mr C was asked about the e mail he sent to his manager on 05/06/2020.  He said that his manger contacted him in relation to work matters and he mentioned to his manager that he found the video offensive.  His manager asked him to put his concerns in writing and that is why he sent the e mail. Mr C confirmed that he did not know what the purpose of this was.  The work matter he was spoken to related to a request to ask him to change his shift the following week.  Mr C confirmed that he was not told that the complainant was suspended.

Mr C was asked if he would confirm that he watched the video for about 30 seconds and that he did not see the original link.  He confirmed that he only watched a part of it with the complainant and watched the entire video subsequently.

Mr C was asked if he had received any specific training or guidelines in relation to the use of these groups at work.  Mr C confirmed that he had not received any official guidance but that he was made aware by the Team Leader that the purpose of this group was to lighten the mood.

The complainant commenced employment with the respondent as a technician on 12/06/2017.  The complainant is a Lithuanian national.  He worked approximately 40.11 hours per week and was paid €3,353.41 gross per month inclusive of benefits and allowances.  During the Covid-19 pandemic a Microsoft Teams group was set up and named “SuperHappyFunTimes”.  The intention of this group was to encourage team members to have fun during the pandemic as they were working on site.  This group was set up by the team leader and was not for work related matters.  On 03/06/2020 the complainant posted a video on the group chat.  This was taken from YouTube and is available on line, without restriction, since December 2013.  This video had over 6.5 million views and was made by an Israeli-American comedian and parodist.  The team leader requested the complainant to remove this video and he done so.  On 05/06/2020 the complainant was placed on suspension pending an investigation of misconduct in relation to the posting of the video.  At the investigation meting the complainant made it clear that he viewed this video as a joke and that it commences with the words “this is jokes not for kids.”  The complainant confirmed that he did not share the link with colleagues, but he did shoe the link to two of his colleagues on his personal mobile phone.

A disciplinary meeting took place and at his meting the complainant was asked if he was remorseful.  He noted that he did not realise that people could be offended by this video and that it why he posted it.  He still did not see it as racist but accepted that others might find it racist and acknowledged that he failed to see that.  The complainant also explained that he is from Lithuania and was born in the USSR and accepted that he needs to change his thinking and his approach to such matters.  The outcome of the disciplinary process is that the complainant was dismissed.  He availed of his right to appeal.  He was asked to outline further details of the basis of his appeal but did not do so as he had already submitted the grounds of appeal.  The appeal process then proceeded to “review” the appeal without a hearing.  On that basis the decision to dismiss the complainant was upheld.  The reasons for this were outlined and specifically that he would be “at risk of posting (or exposing other employees to) similar material in the future”.  This letter them made a specific reference to the incident on 04/05/2020.

It was submitted on behalf of the complainant that there were a number of flaws in the respondent’s processes:

Disciplinary:  There was no appeal process. What took place was a flawed process in which the complainant was not heard. There was a paper review rather than a de novo hearing.  The incident of 30/04/2020 was a major part of the decision to dismiss and yet that issue was not the subject of any disciplinary process. The reliance on that incident without having given the complainant an opportunity to be heard was significant flaw.

It was also significant that the contents of the mail Mr C sent on 05/06/2020 was never put the complainant.  This e mail was used as part of the disciplinary process and the complainant was entitled to a copy of this.

It was also submitted on behalf of the complainant that the sanction of dismissal was disproportionate.  The video needs to be considered in context.  It is freely available and had over 6.5 million views.  The video clearly states that this is a joke and is a parody.  It has been available on You Tube since 2013 and it should be noted that You Tube has its own moderation process.  This video was shared on the Teams platform for less than 20 minutes and could only have been viewed by a maximum of 5 people, but the respondent is unable to provide any evidence in relation how many people viewed it.  The complainant also removed this video when requested.  If there was any further sharing of this video after it was taken down it had nothing to do with the conduct of the complainant but rather was related to the conduct of the respondent.  The context is central in determinising if the sanction was excessive.  The respondent did not consider any other sanction. It is clear therefore that the dismissal was unfair.

Mr Rykov (the complainant) gave evidence at the hearing. He confirmed that although he is a Lithuania national he was born in the USSR and considers himself Russian.  He commenced work with the respondent as and IDX Technician.  He outlined details of his pay and bonus payments.  The complainant also confirmed that he was never involved in any disciplinary process with the respondent until this incident.  The complainant was asked to outline his understanding of the “SuperHappyFunTImes” group chat.  He confirmed that it was informal group to share funny things such as jokes, pictures, comments and links.  It was his understanding that about 10 – 15 people had access to this group chat.  The complainant said that on the day he posted the video there were four people who had laptops and could only access it if they were on site.  After 4.00pm there were only four people who could have accessed it before he took it down.  He posted the video at 4.55pm and it was taken down at the insistence of his team leader at 5.14pm.  The complainant explained that he tried to explain to his team leader that this was a joke.  The complainant was asked it he thought it was appropriate to share this video.  He explained that because he comes from a different society this video for him was only a joke.  He did not want to hurt anyone’s feelings.  He considered it funny and wanted to share it.  The complainant confirmed that he showed it to two others and sent the link to one of those.  He showed it as he wanted to ask their opinion as he did not think it was racist.  The complainant was asked what he thought about this matter when the disciplinary process began, and he said that if the video is taken out of context it could be seen as offensive.  The complainant explained that he was remorseful as he now understands that people think differently to me in relation to the video.

The complainant was asked about the e-mail sent by his colleague on 05/06/2020.  He confirmed that the first time he saw this was on the day of the hearing.  He did not see it during the investigation or disciplinary process.

The complainant was asked about he appeal process.  He confirmed that he got help from friends to draft his letter of appeal which he sent to the respondent on 23/06/2020.  He was never invited to any appeal hearing and had no input into the appeal process.  He did not respond to the letter of 29/06/20 as he felt that he had nothing else to add to his appeal letter.

The complainant was asked if he recalled what training he received in relation to Dignity at Work.  He confirmed that he received a lot of training from the respondent.  He was given an employee handbook and he would not have noted that the posting of a video would be understood as gross misconduct.  The purpose of posting the video was not to attach or hurt anyone’s feelings.

The complainant outlined that he had no discussions with the respondent in relation to any alternative sanction and he was extremely shocked when he realised that he was to be dismissed.  When he was not afforded an opportunity to appeal his world went upside down.  He worked for the respondent for three years and he felt he knew then

The complainant confirmed that he has sought work since his dismissal and obtained alternative employment on 17/08/2020.

Under cross examination the complainant confirmed that he worked for the respondent for three years and he had no issued.  He was provided with the terms of his employment and an employee handbook when he started work.  The complainant was not aware if the respondent’s policy noted how many people needed to be offended by an incident.  He was taken through various aspects of the respondent’s policies and he confirmed that he shared it for fun.    The complainant also noted that he never had any training in relation to what can or cannot be posted so he relied on his own internal judgement.  The complainant was asked when he was told it was offensive and he confirmed that a colleague watched the beginning of it.  He was never told it was offensive and that was the reason he called him later.  The complainant was asked if, having been updated on the relevant sections of respondent’s policies at the hearing, he could now see how it could be offensive.  He said that the video had a disclaimer at the beginning and it was clear that it as intended to be a parody on various stereotypes.  He confirmed that he understood that the respondent had to act and that what he might find funny others may not.

The complainant was asked if he understood why his colleague, Mr C, found the video offensive.  The complainant noted that Mr C did not tell him that he found it offensive.  He calls him later as he was seeking assurances.  He confirmed that the letter he received dated 08/06/2020 told him not to contact anyone.

The complainant was asked if he was aware during the investigation and disciplinary processes that he cold be dismissed.  He was not aware of this.  He was asked why he failed to respond to the letter from the appeal process seeking further details of his grounds for appeal.  He said that he had nothing else to add to what he had put in the appeal letter and it was not clear to him that he had to reply.

The complainant outlined that he wanted to stay working for the respondent and it was the best job he ever had.  He wanted to stay working until his retirement and he worked with good colleagues.

Applicable Law:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

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

(a)    the capability, competence or qualification 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)    the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.

Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provides:

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

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

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

S.I. No. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), provides that:

“The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, 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.”

In determining whether a dismissal of the Complainant was unfair, I must examine whether the Respondent has discharged the burden that the decision to dismiss the Complainant fell within the range of reasonable responses that a reasonable employer could adopt. Furthermore, the Respondent must show that the procedures adopted by the Respondent that resulted in the decision to dismiss were fair and that the conduct was that of a reasonable employer.  

The band of reasonable responses test was considered by the Irish High Court in Bank of Ireland v Reilly [2015] IEHC 241. In Reilly, Noonan J. highlighted that s.6(7) of the Unfair Dismissals Act 1977 provides that a court may have regard to the reasonableness of the employer's conduct in relation to a dismissal, and stated:

“That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

In relation to s.6 of the Unfair Dismissals Act 1977, Noonan J. in Reilly highlighted the onus that is on the employer to establish that there were substantial grounds justifying a dismissal, and that the dismissal resulted wholly or mainly from a matter specified in s.6(4) of the 1977 Act, which includes the conduct of the employee.

The reason for dismissal was stated the Respondent in the letter of 19/06/2020 at the relevant passage, as follows: 

“We have considered your response and have decided that your conduct is unsatisfactory. As your

actions amount to gross misconduct you are summarily dismissed and will not return from suspension”.

The subsequent appeal process was advised to the complainant and he lodged his appeal.  There was a request for further information and the complainant did not feel he had anything further to add and therefore did not respond.  However, the respondent’s appeal process states: “The employee shall have an opportunity to state their case and to put their views across.”  In An Employee V An Employer ADJ-0000381on the subject of appeals the Adjudication Officer stated:

“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.”

The complainant in this case did not have that opportunity and the outcome of the appeal process informed him of the reasons why the decision to dismiss was upheld.  This decision now included a reference to a previous matter which while similar in nature to this incident was not the subject of any disciplinary process. 

As an Adjudication Officer I must also take account of the conduct of the complainant.  From the evidence adduced it is clear that this video had contained components which could be deemed to be racist in nature and offensive.  The disclaimer referred to would have no impact on anyone who was subsequently offended by the content.  I find that the evidence of Mr C to be most helpful.  He outlined that he described how this initial content was sufficient for him to form a view that it was not acceptable material.  I find his evidence most credible and reliable. He responded to the subsequent contact from the complainant in a professional and calm manner. In most workplace policies which deal with dignity at work and harassment the intention of the person engaging in unwelcome or unwanted behaviour is irrelevant.  It is the effect of the behaviour on the employee concerned is what is important.

While it was not unreasonable for the respondent to dismiss the complainant, I find that the process followed in reaching that decision was flawed and unfair.  I find that the complainant has contributed substantially to his dismissal by posting the video on one of respondent’s communication platforms.

I find that this complaint is well founded and that the decision to dismiss was unfair.  I have decided that compensation is the appropriate remedy.  I have decided that the complainant made genuine and significant efforts to mitigate his loss.

I have decided that the respondent should pay the complainant compensation of €6,500 and this quantum reflects his contribution to the dismissal.

Unfair dismissal.  Mitigate loss.  Procedurally unfair