ADJ-00031009

Complainant

Respondent

Anonymised Parties

Retail Security officer

Retail outlet

Representatives

Emmet Butler ,  Monk Solicitors. Mr. James Doran, B.L.

Niamh Ní Cheallaigh, IBEC.

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-00041272-001

27/11/2020

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

CA-00041272-002

27/11/2020

The complainant has submitted a complaint under the Unfair Dismissals Acts 1977-2015 and a complaint under the Minimum Notice and Terms of Employment Act, 1973.

The complainant was employed as a retail security officer with the respondent, a supermarket chain, from 4 February 2008 until his dismissal on the 11 September 2020.

His salary was €761. He worked 45 hours a week.

He submitted his complaint to the WRC on the 27 November 2020.

CA-00041272-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977. 

The complainant was employed as a retail security officer in one of the respondent’s stores.

On the 19 June 2020 the complainant sent an adult content video in error to Ms. A, a colleague, on WhatsApp, causing her upset.  He deleted the video within 10 minutes when he noticed that it had gone to an unintended recipient. Ms. A blocked the complainant’s number on her phone.

The complainant has repeatedly apologised for his error and for the upset caused to Ms. A.

The complainant was suspended with pay on the 20 June for what the respondent described in a letter of 23 June as “inappropriate behaviour. Subsequently, four investigative meetings were held with the complainant. Seven employees provided statements which fed into the respondent’s deliberations. The outcome of the investigation process saw the complainant placed in a disciplinary process. A disciplinary hearing took place on the 6 August, conducted by Mr. D, a store manager, which culminated in a letter of dismissal issuing to the complainant on the 11 September 2020. 

His representative argues that the fact of his acknowledgement of and apology for sending the video was not considered in mitigation nor referred to in the dismissal letter.

His appeal of the sanction was heard on 6 October. The original decision to dismiss stood. The dismissal letter takes no account of his hitherto clean record, or the effect of the dismissal on the complainant.

When the complainant sent the video, he was off duty. He apologised to the colleague that day.

The complainant submits that the sending of the adult video to the colleague was a extremely serious mistake and should not be classified as serious or gross misconduct which presupposes an element of intentional and deliberate misconduct. That is not the case in the instant case.

The complainant was not afforded a fair hearing. The processes employed by the respondent were tainted with bias with the issue being prejudged and the penalty imposed being predetermined.

The penalty of dismissal is disproportionate and unjust. 

Complainant’s evidence.

The complainant stated that he is a 58-year-old, African -born man, employed with the respondent for 13 years. English is not his first language.

He sent the first video to his colleague, Ms. A, by mistake, on 19 June, intending to send it to R, his friend, whose first name had the same initial as Ms. A. He accepts he should not have sent it. He apologised to Ms. A.

He cannot recall when he was directed not to send her text messages.

The complainant deleted her number from his phone, but it remained on his WhatsApp list. He sent the second video (a wedding clip of a groom on skates) to his brother and to everybody on his WhatsApp group. 

Cross -examination of witness.

The complainant stated that he would not like his daughter to have received the type of video which he had sent to Ms A. He believed his apology merited greater consideration.

He accepted that his behaviour upset Ms A.

When asked how the second video had issued to Ms A on 29 June, he stated that he had deleted her number. He did not know if Ms. A was part of a WhatsApp group. He sent the second video to everybody on his WhatsApp group. 

Ms C. Daughter of the complainant gave evidence.

She stated that she received the second video which had issued to the colleague Ms A. It’s a comic wedding video of a groom, sent to everybody on his WhatsApp group and mistakenly to Ms A . He had deleted Ms A’s number from his contacts but not from his WhatsApp list. This list did not show Ms A’s name. 

Legal authorities.

The complainant relies on Frizelle v New Ross Credit Union Limited 91997) IEHC 137 which held that

“the actual decision as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the he gravity and effect of the dismissal on the employee “. 

In Bunyan v United Dominions Trust (1982) IRLM 404, the then EAT held that their function is 

“to test such decision against what we consider the reasonable employer would have done and /or concluded”

when asked to decide on the unfairness or otherwise of a dismissal.   And inMcGee v Beaumont Hospital DU/136/1984,the EAT referring to a sanction other than dismissal stated

“The task of the Tribunal is not to consider what sanctions the Tribunal might impose, but rather whether the reaction of the respondent and the sanctions imposed lay within the range of reasonable responses.”

The complainant’s representative refers to the decisions relied upon by the respondent and distinguishes them from the instant case.  A Senior Men’s Clothing Salesman v A Clothes Retailer, ADJ 16285 concerned unwanted physical contact and sexual harassment. In Murray v Meath Co Council UD/1978, the perpetrator had assaulted the colleague. That is not the case in this instance where no harm was intended towards Ms. A.

The complainant’s representative stated that the respondent in dismissing the complainant did not act as a reasonable employer. His dismissal was unjust, disproportionate and far exceeded any reasonable response. The appeal as is evident from the evidence of Mr. E who, while relying on the effect of the video on Ms. A, did not interview Ms A to establish its effect, nor advise her of the complainant’s apology. 

Remedy.

Reinstatement.

The complainant being of mature years will have difficulty securing new employment. He has applied for other jobs. He has secured part- time employment, working 19-20 hours a week from 10 July to date, earning €200 per week.

CA-00041272 -002.Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The complainant submits that he is entitled to the statutory minimum notice.

CA-00041272-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The respondent operates a supermarket chain.

The Respondent refutes this claim in its entirety. The complainant’s employment was terminated on 11 September 2020 on the grounds of serious misconduct following a fair and impartial investigation, disciplinary and appeal process.

The complainant sent a pornographic video to a colleague, Ms. A, on 19 June 2020. On the 20 June, Ms. A informed the deputy store manager. She also informed the deputy store manager that the complainant at a previous date had asked her for a hug and kiss and that he had stated to another colleague, Ms. F, that he would like a fresh wife like Ms. A. She stated that she was very uncomfortable when alone with him as he would invade her personal space.

The deputy store manager conducted a preliminary investigation on the 20 June 2020 and suspended the complainant pending a further investigation. The complainant continued to contact Ms. A after this despite being instructed to desist from any further contact with Ms. A who was very upset by his behaviour towards her.

The complainant was placed in a disciplinary process entailing four investigative meetings, an investigation outcome meeting on 4 August, a disciplinary hearing on the 6 August and a disciplinary outcome meeting on the 11 September. The respondent decided that he should be dismissed. He appealed the decision to dismiss him on the 6 October. His appeal was not upheld.

The respondent submits that the complainant was dismissed because of serious sexual harassment.

Evidence of Ms B, manager of Store A.

The respondent witness, manager of the store in which the complainant works, is with the company since 2000.

She was tasked with investigating a complaint from Ms. A that the complainant had sent a pornographic video to her.

The first investigative meeting held on the 25 June was adjourned until 29 June. The complainant accepted that he had sent the pornographic video to Ms A. He apologised.

The complainant was represented at all stages of the procedure and had union advice at his disposal.

The second investigation meeting held on the 7 July concerned a second video which the complainant had sent to Ms. A on the 29 June 2020, though he had been told to make no contact with her. While she did not examine it, she understood it was of a wedding.

The complainant contradicted himself at this meeting of 7 July by stating that he first deleted Ms. A’s number on Monday 29 June, the date on which he sent the video, and then stated that he deleted Ms. A’s number on Tuesday 30.

His conduct was in breach of company policy

Cross- examination of witness.

The witness confirmed that the term sexual harassment was not put to the complainant. In answer to the statement that the respondent had not used the WRC Code of Practice on Sexual Harassment, the witness stated that they had followed their own Dignity at Work Policy. The witness confirmed that at every stage of the disciplinary process the complainant had acknowledged what he had done and apologised. The witness stated that it was possible that the complainant sent the video in error to Ms A. He was told not to contact Ms. A after having been suspended and did so, admittedly, to apologise to her.

At the second investigative meeting on Monday,29 June 2020, he was told not to contact Ms. A.

The witness confirmed that the respondent did not uphold the assertion that he had wanted to kiss Ms A.

The witness confirmed that it was another employee, Ms F, who suggested to the complainant that he should get a wife.

The witness stated that she did not investigate witness statements as they amounted to hearsay about the video. They were not relevant as the authors of the witness statements had not seen the video which the complainant had sent to Ms. A. The respondent was influenced at all times by the upset experienced by Ms. A at the pornographic video and by the complainant’s statements at the investigative meetings. The complainant continued to disregard the respondent’s instructions.

The witness confirmed that they did take into account the fact that the complainant had apologised.

The witness confirmed that she had sometimes pressed the wrong buttons on her phone.

The witness stated that the complainant told her that while he had sent the second video to his general WhatsApp group, he had been unable to remove Ms. A from this group.

Evidence of Mr. D, manager of Store B.

Mr. D, the store manager was tasked with conducting a disciplinary hearing on the 6 August. He examined the 5 allegations against the complainant.

The complainant’s union representative sought redeployment for the complainant to another store.

The complainant was dismissed because his conduct was unacceptable. The respondent has a duty of care towards employees. The witness did consider sanctions short of dismissal for example, a final written warning, but believed dismissal was the appropriate sanction.

Cross examination of witness.

The witness confirmed that he had stated to the complainant at the disciplinary meeting of the 6 August that he would take everything into consideration. He accepted that the complainant admitted early on to having sent the video, apologised for the upset caused to Ms. A, and that he had no previous disciplinary issues, in other words no live warning.

Mr. D did not consider a period of unpaid suspension. He is not responsible for the complainant’s behaviour and choices or future earnings. The absence of motive or intention was irrelevant; the complainant is responsible for his actions.

He upheld three of the five allegations against the complainant. He viewed the pornographic video as the most serious of the 5 allegations. It was for this that he was dismissed. He also upheld the allegation that the complainant had stated to a colleague, Ms F, that he needed “a fresh wife” and that Ms. F had relayed this to Ms A. He upheld the further, third, allegation that the complainant continued to contact Ms. A contrary to the respondent’s instructions.

He stated that retail security officer position is no longer available in their stores. He did not consider transferring him to another store in another role.

Evidence of Mr. E, store manager in Store C.

The witness, Mr E, was tasked with hearing the complainant’s appeal against the dismissal.

In considering each ground for the dismissal, the witness spoke to the employee tasked with each previous stage of the disciplinary process.

The witness rejected the complainant’s appeal because of the seriousness of the offence and the effect which it had had on Ms. A. The sending of the video to Ms. A was the essential reason for his dismissal. This constituted gross misconduct

Cross examination of the witness.

The witness confirmed that he had not seen the pornographic video, nor had he interviewed Ms A. He did not advise her of the complainant’s apology.

The witness stated that he did not consider a lesser sanction because he took his lead from Mr. D, the disciplinary officer.

He did consider the complainant’s 12 years’ experience but took into consideration Mr D’s views. Mr. E had no contact with Ms. A.

The option of transferring the complainant to another store was not an option as the respondent no longer employs in- house security personnel; they outsource this function. He did not consider transferring him to another role in a different store. There was no other role for him in their other stores.

The witness confirmed that Ms. A had seen two seconds of the video.

He did not consider that the complainant’s apology would obviate the need for his dismissal.

The witness confirmed that he had made the decision to dismiss based on Ms. A’s upset at the pornographic video.

The respondent’s representative contends that the actions of the complainant amounted to serious misconduct, as defined by the employer and understood by the employee. The respondent operates a zero-tolerance policy towards sexual harassment. The respondent has a statutory duty of care to their employees. The respondent stated that an apology doesn’t rectify the behaviour particularly as the complainant continued to contact Ms. A. The second contact on the 29 June could not have been a mistake.

The respondent submits that in accordance with Looney and Co Ltd v Looney, UD 843/1984, the adjudicator’s role in the instant case is

“not to establish the guilt or innocence of the claimant ……. or to consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did or decided as he did. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances would have done and decided and to set this up as the standard against which the employer’s action and decision be judged”

The respondent relies on ADJ 16285 which upheld the dismissal of that employee for sexually harassing a colleague. The adjudicator found it to be a substantial ground.

Notwithstanding that no unfair dismissal took place, and in the event that the adjudication officer was to find in favour of the complainant, the respondent asks that the adjudicator choose what is the most appropriate remedy in the circumstances and the preferred option is compensation. It would not be reasonable to have the complainant return back to the workplace in circumstances whereby he was dismissed for such serious allegations. Furthermore, the role of security officer in the capacity that the complainant was employed in no longer exists in stores. The respondent respectfully submits that where one party is strongly opposed to re-instatement or reengagement, the adjudicator should respect this.

 The complainant contributed wholly to his dismissal. Accordingly, the complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015. Furthermore, the respondent submits that should the adjudication officer determine that the complainant was unfairly dismissed they should be guided by the multiple decisions of the Employment Appeals Tribunal, including Murray v Meath County Council, UD 43/1978, where the Tribunal decided not to award any redress to the complainant in light of his inappropriate actions.

The respondent respectfully requests that the adjudicator find that the decision to dismiss the complainant was justified and fair and that, accordingly, the present claim should fail.

CA-00041272 -002. Complaint under section 12 of the Minimum Notice and Terms of Employment Act,1973

Section 8 of the Minimum Notice & Terms of Employment, Act 1973, states that

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

The respondent contends the complainant was not entitled to minimum notice or payment in lieu thereof.

CA-00041272-001. under Section 8 of the Unfair Dismissals Act, 1977 .

The respondent dismissed the complainant on the 11 September for serious misconduct. 

The complainant askes that I accept that his dismissal was unfair as his conduct did not amount to serious misconduct, the procedures employed by the respondent in effecting the dismissal were flawed and that the sanction was disproportionate. 

Relevant Law.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“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 “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states “…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a) ……………..

b)     the conduct of the employee”  

In examining a complaint of unfair dismissal, the adjudicating body will examine the substantive issues or grounds prompting the dismissal and the procedures employed in effecting the dismissal.

Did “substantial grounds” exist to justify the dismissal? 

Initially there were five allegations against the complainant. Three of these survived and were upheld. The first allegation that the complainant sent a pornographic video to his co -worker on 19 June 2020 is uncontested. It is accepted that he deleted the video within 10 minutes of its transmission.

The second allegation which was upheld was that though he was instructed to desist from any further contact with Ms. A on the 20 June, he texted an apology to Ms A on the same day and sent a further video to Ms A on the 29 June, an action labelled as” inappropriate” by the respondent, not so much for its content (a reportedly comic piece about a wedding), as for the act of disregarding the respondent’s instruction to cease all contact with Ms A. and transmitting the video to an employee, knowing that she had been disturbed by his attention towards her.

The third allegation against the complainant which was upheld was that the complainant did respond to a colleague’s statement that he needed a wife by making a statement to Ms. F, the colleague, that he needed “a fresh wife like Ms A”. Ms. F of her own volition relayed this comment to Ms .A.

It is accepted that he admitted from the outset to sending the video, admitted that he had texted the apology to Ms. A on the 20 June, to the transmission of the further video on the 29 June and that he had made the statement to Ms. F. It is accepted that he apologised throughout the process for his actions.

Ms. A’s complaint that the complainant had asked her for a hug and a kiss the week prior to the 20 June remained unproven at each stage of the disciplinary process. 

Ms A’s complaint was processed through the respondent’s Dignity at Work Policy. That policy encompasses a prohibition of bullying and sexual harassment. The respondent’s Dignity at Work Policy was amended to their Bullying and Harassment Policy which includes the circulation of pornographic material as an instance of harassment. 

On the 30 July the investigation of Ms. A’s complaint concluded that the disciplinary procedure should be activated against the complainant. He was to answer the charge of a breach of the Dignity at Work policy and inappropriate behaviour. The disciplinary hearing culminated in his dismissal on the 11 September for serious and unacceptable behaviour- behaviour which was found to have breached the Dignity at Work Policy.

The respondent’s disciplinary policy contains an inexhaustive list of what constitutes serious misconduct; it includes actions” which on a common-sense basis are considered to be a serious breach of acceptable behaviour. The list also includes “harassment and sexual harassment”.

Notwithstanding the fact that while even the respondent held out the possibility that the transmission of the first video could have been an error, I find that the complainant’s behaviour matches the range of behaviours in the respondent’s disciplinary procedure which are deemed to constitute serious misconduct for which dismissal is a permissible sanction.

I find that the complainant’s conduct was indefensible and did amount to serious misconduct. I find that there were substantial grounds underpinning the decision to dismiss the complainant. 

Reasonableness of the employer’s conduct.

Section 6(7)(a) of the Unfair Dismissals Act 1977 (as amended) requires that in determining if a dismissal is an unfair dismissal, 

“regard may be had, if the Adjudication Officer or Labour Court 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 section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d)(inserted by Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act “. 

In addition to having substantial grounds for the dismissal, the respondent must demonstrate that they acted reasonably in relation to the dismissal. The conduct of the employer requires that I examine the procedures employed in executing the dismissal and the proportionality of the sanction. 

Procedures employed in effecting the dismissal of the complainant.

I find that the investigation and disciplinary hearing were conducted in accordance with the respondent’s procedures and that both met the requirements of S.I 146/2000. 

The Appeal

The appeal officer considered 20 grounds and gave a written response setting out why the grounds could not be upheld. But over and above the written response to the complainant’s appeal, Mr. E who conducted the appeal, stated in evidence that he opted for dismissal rather than a final written warning because he “took his lead from Mr D”, who issued the letter of dismissal following the disciplinary hearing. He stated that he did consider the complainant’s 12 years’ service but considered Mr D’s views that dismissal was the necessary sanction. In response to the question could there have been any variation in the penalty, Mr E stated, again, that he took his lead from Mr D.

The Adjudicator in ADJ-00024334, and relying on the earlier decision of An Employer v An Employee, ADJ  000381, considered the purpose of an appeal and observed 

“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”. 

On the matter of the “last chance” to highlight the mitigating factor of his 12 years of service free of any disciplinary record, and hence the proportionality of the sanction, the respondent admitted he couldn’t ignore the decision of Mr D who dismissed the complainant. The respondent’s evidence fails to demonstrate that they gave serious consideration at the appeal stage to an alternative sanction or that they took his length of service into account. Instead, Mr. E was unable to detach himself from the views of Mr. D who dismissed the complainant. He took his cue from Mr D.

This does not rest easily with the purpose of an appeal as set out in ADJ 24334.

The respondent’s disciplinary procedure at stage 5 addresses the sanction which can issue in response to a finding of serious misconduct and states that the severity of the sanction will be governed by the existence or otherwise of previous warnings, the severity of the conduct and the conduct or honesty during the disciplinary process.

I find that the independence required of the decision maker at the appeal from the conclusions of the previous stage of the disciplinary process is absent.

Proportionality of the sanction

This is a necessary element in considering the reasonableness of the sanction. The question of the proportionality of the sanction was considered in Michael Caplis v Transdev Ireland Ltd UDD 1932, a decision upheld on appeal to the High Court. The following factors in that complaint of unfair dismissal were identified as rendering the dismissal to be unfair:

The employee had admitted his conduct from the outset and explained that he had mistakenly believed that driving his wife’s taxi was not double jobbing and a breach of his contract of employment.

The employee had over 12 years’ service with Transdev and had no previous disciplinary record.

In the instant case the complainant admitted sending the video from the outset, and he had had no previous disciplinary record. In addition, the complainant apologised at each stage of the process. His subsequent contact existed of an apology via text and a video put into general circulation. His union representative argued for his transfer to another store. The respondent has multiple retail outlets in the Dublin area. The evidence indicates that no examination of this option in tandem with another sanction occurred. 

The cases upon which the respondent relies are ADJ 16285 in which the complainant repeatedly perpetrated acts of sexual harassment against a colleague. He sought to justify his behaviour, showed no remorse and was in a senior position. The adjudicator relied on the High Court decision of The Governor and the Company of the Bank Of Ireland- v- James Reilly which while finding that dismissal to be unfair, set out the test which must be undertaken in determining if a dismissal is unfair; was the decision to dismiss “within the band of reasonable responses of a reasonable employer to the conduct concerned.”. The adjudicator decided that the dismissal was within the range of reasonable responses.

While reluctant to create a hierarchy of offences, there is a difference in degree between the instant case and ADJ 16285.

 Looney and Co Ltd v Looney, UD 843/1984 does not constrain an adjudicator from examining the dismissal in the context of section 6(7)(a) of the Act (as amended).

While one’s instinct might be to conclude that in the face of the complainant’s behaviour the employer had no choice but to dismiss, the complainant’s behaviour and the employer’s response are not exempt from the requirements set out in section 6(7)(a) of the Act of 1977 and as developed in subsequent case law.

I find that the complainant’s behaviour did amount to serious misconduct.

Based on the evidence concerning the appeals process, and in considering the proportionality of the sanction, I find that the respondent’s conduct failed to comply with the requirement for reasonableness as set out in section 6(7)(a) of the Act of 1977 (as amended).

I therefore find that the complainant was unfairly dismissed. 

Remedy.

I do not believe that reinstatement is appropriate. I consider that compensation is the more appropriate remedy. I note the complainant has applied for approximately eighteen jobs in the period October 2020 to July 2021 when he took up new employment. Aside from his relaxed efforts to mitigate his loss, I accept the merits of the respondent’s contention that he is largely responsible for his dismissal and that any compensation should reflect that.

 Bearing in mind the provisions of section 7 (2) of the Act of 1977, Idecide that the respondent should pay the complainant the sum of €4566 which represents six weeks salary.

CA 00041272 -002.Complaint under section 8 of the Minimum Notice and Terms of Employment Act, 1973

Section 8 of the Minimum Notice & Terms of Employment, Act 1973, states that

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

I find that the complainant was dismissed for misconduct.

I do not find this complaint to be well founded.

CA 00041272 -001.Complaint under section 8 of the Unfair Dismissals Act.

I find this complain to be well founded. The respondent is to pay the complainant the sum of €4566 in respect of his financial loss.

CA 00041272 -002.Complaint under section 12 of the Minimum Notice and Terms of Employment Act, 1973.

I do not find this complaint to be well founded.

Unfair dismissal; sexual harassment; reasonableness of employer’s conduct; proportionality of sanction.