Complainant

Respondent

Parties

Jason  Cahill

Clancourt Management Ltd.

Representatives

Deirdre Canty SIPTU

Karen Talbot Talbot Pierce

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-00040869-001

09/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00040869-002

09/11/2020

The Complainant alleged unfair dismissal and unpaid holidays and public holidays.

The Complainant contends he was deliberately targeted for dismissal. He was subjected to allegations against him, they were investigated, and he was dismissed as a result. The Complainant contends his dismissal was disproportionate and unfair.

The Complainant was employed as a Security/Maintenance Operative since December 13th, 2013. The Complainant contends he was constantly targeted for disciplinary action and was involved in 3 investigations while employed and the Respondent engaged two different Barristers to investigate the issues involved.

The Complainant also raised grievances with the Respondent and these are with the WRC.

The Complainant was subsequently dismissed on September 3rd, 2020, for reasons specified as gross misconduct.

The Complainant had allegations made against him in December 2018 and these were upheld internally in August 2019.

Prior to this an issue with another employee arose and the allegations against the Complainant were upheld in July 2018 by an external Investigator. The Complainant contended that the Respondent refused to follow fair procedures and evidence was omitted. The Complainant was issued with a Final Written Warning arising from these issues/investigations on December 13th, 2019.The warning was appealed but was upheld by the Respondent. Out of desperation the Complainant spoke to a colleague who stated that he was pressured into signing a statement. Arising from this the Respondent commenced a third Investigation for interfering with a Witness. This was conducted by a Barrister with links to the HR Consultancy Company engaged by the Respondent. The outcome of this investigation was that the complaint against the Complainant was upheld. The Complainant was invited to a disciplinary Hearing on August 20th, 2020, and he was dismissed on September 3rd, 2020.  The decision to dismiss was appealed but not overturned. The Complainant contends that fair procedures were not afforded to him, evidence he required was denied and he was not allowed view CCTV footage.

The Complainant raised a grievance on October 19th, 2019, to highlight the behaviour against him but these allegations were not investigated.

The Complainant also raised his contract of employment and why he had not been assigned to Security duties for a number of years.

The Complainant Representative quoted a number of case law to support the Complainants case.

The Respondent had a number of other options open to them and failed to take into account the Complainants prior clean record.

The Complainant contends he was not paid for outstanding annual leave on his termination.

In conclusion the Complainant contended that:

There was no proper and fair procedure followed

The Complainant was denied natural justice

The dismissal was disproportionate, unwarranted and unreasonable

The Respondent breached their own policies and procedures.

The Complainant is owed some days holidays.

The Complainant employment was terminated on 3 September 2020 as a result of misconduct.  His misconduct was considered to be gross misconduct, warranting dismissal.  The nature of the misconduct was serious dishonesty that was considered to be in fundamental breach of his contract of employment and direct instructions regarding communicating with a Witness to an investigation into the Complainants conduct and the fabrication of complaints against colleagues. 

At all times, the Company dealt with the Complainant fairly, with rigorous application of Company procedures and natural justice.  The Complainant was also represented by SIPTU throughout.  

At the relevant time, a live final written warning was extant.  Notwithstanding this, the Complainant conduct was considered to amount to gross misconduct, warranting dismissal.

The Complainant commenced employment with the company in December 2013 and was employed as a Maintenance/Security Operative.  The Complainant normal working week was 39 hours per week on a gross weekly wage of €520 at the time of the termination of his employment.

The Respondent owns and operates the Crescent Shopping Centre, Dooradoyle, Co Limerick, in which the Complainant worked.

Following an internal investigation, a disciplinary process commenced regarding the Complainants conduct. The outcome of this process resulted in the Complainant dismissal. 

All appropriate steps were taken, and the Complainant was provided with documentation and communication throughout. 

It was denied that the Complainant was unfairly dismissed. A decision was made following a number of fair and transparent company procedures that ultimately led to the Complainant dismissal. 

While the Complainant dismissal was based on gross misconduct, warranting dismissal, in September 2020, previous incidents are relevant, and are referred to in the proceedings leading up to his dismissal.  The sequence of events are as follows:

Leading up to December 2018, a number of concerns regarding the Complainant conduct were raised. The allegations were as follows: 

The Complainant made a comment on a colleague’s marriage being in trouble.

The Complainant made a comment on a colleague being in trouble with his wife for being caught on a particular inappropriate website. 

The Complainant referred to a colleague as a ‘Rat’.

The Complainant made a comment on a colleague adding someone's wife on Facebook because he liked ‘young children’ and is a ‘paedophile’. 

The Complainant told colleagues that another member of staff had lost a previous job for stealing to ‘feed his alcohol problem’.

The Complainant failed to carry out instructions to clean the basement. 

The Complainant was approached for talking to a man at the mall entrance and was aggressive towards the management member who approached him. 

The Complainant refused to wear his safety boots (as required) because of how they would look with his tracksuit bottoms.

The Complainant was advised of these allegations on 5th December 2018 by way of letter and his initial response was sought. An investigation into these allegations commenced.                             

The Complainant was invited to attend a meeting which was held on 14th December 2018. The Complainant did not make any comments at the meeting and requested evidence and written statements in respect of the allegations.  An investigation was initiated.

A letter was sent on behalf of the Complainant advising the Company that the Complainant would not be taking part in this investigation. The Company sent a letter of reply on 20th December 2018.  Following on from this, a number of interviews were conducted with staff members directly involved, to obtain additional information on the allegations. By letter dated 14th May 2019, statements in respect of the incidents were sent to the Complainant and he was invited to attend a meeting on 21st May 2019.  

Following a number of attempts to arrange this meeting, including four letters, it was rearranged for, and took place on, 20th June 2019. The Complainant was accompanied at this meeting by a SIPTU Representative. The Complainant attended another meeting on 26th August 2019 and was afforded the opportunity to respond to a number of allegations. 

The Complainant was subsequently sent a letter, dated 4th September 2019, with a statement from the employee concerned and given an opportunity to respond.

The findings of the investigation concluded that all but two of the above allegations were upheld.

In July of 2019, the Complainant was notified of an investigation into allegations made against him.  The purpose of the investigation was to address two interactions that had taken place between the Complainant and another member of staff, Mr. A.  Each employee made a complaint against the other.

The investigation was conducted in accordance with company policy and adhered to the principles of natural justice and was carried out between the 8th and 29th July 2019.

The investigation took the form of thorough separate meetings with both the Complainant and Mr A, and a further meeting with a witness, Mr B.  Both parties to the investigation were provided with the terms of reference before their meetings and the notes of each meeting, including with the witness, were sent to both parties once they were concluded.

The Complainant was afforded the opportunity to attend another meeting to make comments or provide any further oral submissions.  The Complainant did not avail of this opportunity; however, the Complainant did furnish a written submission with comments and observations. 

The Investigator took the Complainant written submission into consideration and proceeded to reach preliminary findings.  A copy of the preliminary findings was given to both parties and they were afforded the opportunity to make any comments or to challenge any aspect of the evidence.

The Complainant provided a written statement which again was taken into consideration before reaching the final findings. The Investigator proceeded to reach the final findings and furnished both parties with a copy of same.  

Following on from the two above-referenced investigation, the Complainant was invited to a Disciplinary hearing.  The hearing was held on 28th November 2019 and the Complainant was accompanied by a SIPTU Representative.

This Disciplinary process resulted in a final written warning and the Complainant was notified that any further findings of inappropriate conduct may result in dismissal. The Complainant received this information by letter, which also informed him of his right to appeal the outcome

The Complainant appealed the outcome by letter and was invited to an appeal hearing on 24th January 2020 where the Complainant was given the opportunity to present his grounds for appeal and provide an oral submission of same.  The appeal was heard by the Joint CEO of the Company.

The Complainant was provided with a letter, dated 31 January 2020, outlining the outcome of the appeal.  The Complainant was informed that his submissions had been taken into consideration and that the sanction of a final written warning had been upheld.

In December 2019, the Complainant conduct required a further investigation.  The investigation stemmed from two interactions involving the Complainant. (1) The Complainant approaching a colleague, Mr C, who was a witness (in the first investigation regarding The Complainant conduct), and discussed his evidence, when he had been expressly instructed not to do so; and (2) that, in an email to Karen Talbot, the Company’s HR manager,  he falsely stated that Mr C had fabricated his evidence, and further, he falsely stated that the Centre Manager had coerced (these words were not used, but it describes the conduct referred to) Mr C into giving false evidence.

The investigation was conducted in accordance with company policy and adhered to the principles of natural justice and carried out between 9th December 2019 and 26th February 2020. The investigation took the form of meetings with two witnesses followed by a meeting with the Complainant. 

Following on from the meetings with the witnesses, the Complainant received a note of each meeting.  The Complainant also received a copy of the e-mail referred to in the allegations, and a copy of the letter dated 5th July 2019 and the Terms of Reference. 

The Complainant was invited to attend a meeting on 23rd December 2019, however, he was unable to attend due to his representative being unavailable. In light of this, an adjournment was granted until 7th January 2020 and then a further adjournment until 9th January 2020 at The Complainant request.

The Complainant was on sick leave on 9th January 2020 and so the meeting was rescheduled until 28th January 2020.  The Complainant requested another adjournment, again due to his representative’s unavailability, which was granted. The meeting was then scheduled for, and took place on, 3rd February 2020.

The Investigator proceeded to reach preliminary conclusions and drew up a report containing all relevant materials and sent it to the Complainant. The Complainant was invited to comment on the content of the report and its preliminary findings, submit any evidence or attend a hearing for the purpose of submitting evidence and to challenge any evidence.

The Investigator proceeded to finalise the findings. Both allegations were upheld.

On foot of this investigation, the Complainant was invited to a Disciplinary hearing on 17th July 2020, the process had been paused due to the Complainant being temporarily laid off in light of COVID-19.

The Complainant was informed that he would be given the opportunity to make any submission he wished to make and that he could be accompanied.  The Complainant was also informed that consideration would be given to all matters following the meeting and appropriate action would be taken, up to the possibility of dismissal.

The Complainant was accompanied at the hearing by a SIPTU Representative, on 20th August 2020. The Complainant made a number of submissions, all of which were taken into consideration by Mr H, alongside all other matters. 

A decision letter was issued to the Complainant, on 3rd September 2020, outlining the reasons for reaching the decision that had been made and confirming that the allegations from the investigation had been upheld. 

The Complainant was reminded that notwithstanding he had a live final warning on file dismissal was the appropriate sanction.

The Complainant was informed that his actions amounted to gross misconduct, which ordinarily would involve a summary dismissal. However, the Company decided to give a four weeks’ notice period, to be received as pay in lieu.  

The Complainant was advised of his right to appeal this decision.   The Complainant appealed the decision and outlined a number of grounds he believed to have been unfair towards him.

The Complainant was invited to an Appeal Hearing where he could make submissions in respect of the grounds he had submitted. The Appeal Hearing was held on 1st October 2020 and the Complainant was accompanied by a SIPTU Representative (via MS Teams).

The Complainant made a number of submissions at the hearing and consideration was given to each.    The Complainant was provided with a letter addressing a number of issues raised at the hearing and the final outcome of the appeal. 

The sanction of dismissal was upheld.

Section 6 of the Unfair Dismissals Act provides:

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

Subsection (4) goes on to provide:

“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,

Etc.

Subsection provides (6) provides:

“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 (4) of this section or that there were other substantial grounds justifying the dismissal.” [emphasis added].

It was the Respondents submission that the dismissal is one that is covered by the provisions of section 6 (4)(b) of the Act.  The Complainant dismissal resulted wholly from his conduct as an employee.

The Respondent stated they complied fully with all of its obligations under employment legislation, fair and transparent procedures were followed during all stages of the Complainant employment, and in particular, in the disciplinary processes and related investigations, and appropriate steps were taken throughout.

Further, the Respondent submitted that dismissal was the appropriate sanction, given the severity of the misconduct.

Annual Leave Claim under the Organisation of Working Time Act 1997

The Complainants annual leave allowance for 2021 is calculated as follows:

annual leave allowance is 20 days per year. 

Relevant Service for the calculation of annual leave allowance:

January to 27 March 2020 (date of lay-off): 87 days

7 July (date of return to work following lay-off) to 3 September 2020: 59 days

 Annual Leave Allowance 2020: 146/365 x 20 = 8 days

 The payments for Annual Leave paid to the Complainant in 2020 are as follows:

 Week 6: 39 hours – 5 days

Week 32: 39 hours – 5 days Week 33: 39 hours – 5 days

February: 1 day 19 March: 1 day Total: 17 days. 

The Complainant appears to be under the impression that annual leave accrued while laid off, however, this is clearly not the case.  Notwithstanding this, the Complainant was paid for 17 days annual leave for 2020.

Three public holidays fell during the first 13 weeks of the Complainants lay off.  This was taken into account and this information was set out in a letter to the Complainant on 14 October 2020.  In that letter, the Complainant was advised that as a gesture of goodwill, the company was not seeking repayment of the additional days for which he was paid was also on annual leave for week 32 and 33.  Given the practicalities of the operation of the Covid-19 Subsidy Scheme, ‘annual leave’ does not appear on the payslip for week 32 and week 33.  In addition, in January 2020, the Complainant was paid for five days annual leave in respect of 2014.  Those five days are not included in the calculations above.  These 5 days were paid as a gesture of goodwill.  The Complainant had raised a query regarding his 2013/2014 leave.  Due to a deficit in our records to demonstrate that he did receive his full annual leave allowance in 2013/14, as a gesture, the Complainant was paid for five days. 

No claim was put before the Hearing in respect of public holidays.  Notwithstanding this, this matter is dealt with above.

The Respondent submitted that all of the Complainants complaints are without foundation.

The decision to dismiss the Complainant was entirely reasonable in the circumstances.  It was made following robust investigation and disciplinary process, including a full appeal.  It was submitted that there are no procedural deficiencies, and the substantive decision was fully justified.

The Respondent submitted that the Complainant complaints should fail as it is entirely without foundation.  

The Complainant failed to establish at the Hearing that he was entitled to any outstanding holiday pay or public holidays and his recollection of his claim was extremely vague and I prefer the detailed evidence/data supplied by the Respondent in this complaint that concluded that no holiday pay or public holiday is owed to the Complainant.

The Complainant seems to have been in a long running conflictual relationship with the Respondent. None of the evidence he produced could lead to the view that his actions did not amount to Gross Misconduct and no credible case could be construed that he was either unfairly treated from a procedural perspective or fairness perspective. The Complainant contributed to his own dismissal by his conduct, culminating in and primarily because of involving himself with a Witness inappropriately during an Investigation and by making unsubstantiated and offensive allegations against a Manager. This is one of the grounds allowed under the Act (Section 6.4 (b) for a fair dismissal i.e. the conduct of an employee.  The assertion that the Barrister who conducted the investigation had links with the Respondents legal firm was brought forward by the Complainant as an issue. It is common practice that certain Barristers have links with certain legal firms however in this Adjudicators experience he has never once seen a Barrister act without independence in an Investigation. Indeed, their reputation and workload depends on they maintaining that Independence, so, the Complainants attempt to cast doubt on the impartiality of the Investigator in this case was neither supported by any evidence or any argument that was in any way persuasive. It was also obvious from the evidence and submissions the Bond of Trust has broken down between the Parties which seems to have contributed to the decision to dismiss and that no other sanction was appropriate in the view of the Employer. There is no significant reason for the Adjudicator to decide that the Complainants dismissal was not within the Band of Reasonable Responses open to the Respondent due to his actions in attempting to inappropriately influence a Witness to an Investigation and therefore his dismissal was not unfair.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. The Complainant has not set out any credible evidence to support his claim for unpaid holidays or public holidays and I find that the complaint is not well founded. (CA-00040869-002)

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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. Following submissions from both parties I find that the Complainant was not unfairly dismissed. (CA-00040869-001)

Unfair Dismissal