Complainant

Respondent

Anonymised Parties

Software Developer

IT Specialist

Representatives

Self-Represented

Mr James Jones, Jones Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00034549-001

10/02/2020

The Respondent is an IT company, involved in the provision of entertainment service to the general public. On 17th September 2018, the Complainant commenced employment with the Respondent, at all times his job title was that of “Full Stack Developer”, a form of software engineer. On 30th January 2020 the Complainant’s employment was terminated by the Respondent on the grounds of alleged gross misconduct. At the time of his dismissal the Complainant was in receipt of a monthly salary of €5,929.48.

The Complainant lodged a complaint under the Unfair Dismissals Acts only on 10th February 2020, some 11 days following his dismissal. Whilst a hearing in relation to this matter was convened, it was adjourned due to the restrictions arising from the Covid-19 pandemic. In October 2020 both parties agreed to the matter being conducted by means of remote hearing. This remote hearing was convened for, and finalised, on 5th November 2011, with no technical issues experienced by either side during the same.

In advance of the hearing both parties provided extensive written documentation. The Complainant gave witness evidence on his own behalf only. The Respondent’s solicitor called three employees of the Respondent company to give evidence. Both parties availed of the opportunity to cross examine opposing witnesses. No issues as to my jurisdiction to hear the matter were raised at any stage of the proceedings.

As the Respondent accepted that they dismissed the Complainant, they assumed the consequent burden of proof and presented their case first.

On the morning of 30th January 2019, the Complainant’s line manager requested a meeting with management regarding an issue that arose the previous evening. In particular, the Complainant’s line manager was concerned that the Complainant had stated that he was having health issues the previous evening. He was also concerned that the Complainant threatened to create a temporary server that contained a profanity and the company name. At approximately 9 a.m. a meeting was convened and attended by the Respondent’s Director of People Operations, a HR Generalist, the Director of Development and the Complainant’s line manager. The purpose of this meeting was to explore the issues arising from the previous day’s events. These included the Complainant’s apparent refusal to take direction, the threat to publish an application containing profane language, the apparent threat to the company system and, finally, the Complainant’s apparent accusation that his medical issues were caused by the interactions with his line manager.

During the meeting, the attendees became aware that the Complainant had in fact created the temporary server as threatened the previous day. This was a point of extreme concern for the Respondent as this may led to the Respondent, and its affiliate sites, being “blacklisted” by third parties.

In the course of the meeting, the Respondent came to the conclusion that this represented a deliberate act of wrongdoing on the part of the Complainant. In forming this opinion, the Respondent was guided by the fact that the Complainant was aware of the potential damage such action could cause, having been involved in resolving a similar issue some month previous. In light of the same, it was decided that the appropriate course of action would be to dismiss the Complainant on the grounds of gross misconduct, specifically misuse of company property and committing an action that may bring the Respondent into disrepute.

After reaching this decision, a representative from HR met with the Complainant and advised that he should vacate his desk, at this point the Complainant stated that he accepted the dismissal and stated the he “would not fight the same”. He was provided with a copy of the dismissal correspondence and was escorted from the building.

In summary the Respondent submitted that they acted in accordance with their own internal policies in dismissing the Complainant. In particular they stated that Respondent’s disciplinary policy permits “summary dismissal…with immediate effect, without notice and with no liability…” in the event that the Complainant is found to be guilty of gross misconduct. They submitted that the Complainant was lawfully dismissed due to gross misconduct in accordance with the terms of the contract of employment and employee handbook and as such, his application should fail.

On 17th September 2018, the Complainant commenced employment with the Respondent, at all times his job title was that of “Full Stack Developer”, a form of software engineer. At or near the commencement of this employment he developed an automated software system that created numerous efficiencies within for the Respondent. The Complainant received positive feedback regarding this work from management. He also passed his probation and received a pay raise after his first year of employment. This raise was accompanied by correspondence that expressly thanked him for his hard work to date.

While the Complainant initially enjoyed his role, in mid-2019 he began experiencing increased pressure from management. This cumulated with the Complainant experiencing increased stress to the extent that he began to suffer persistent headaches. On December 9th, as the Complainant was feeling unwell he elected to work remotely. When the Complainant continued to feel unwell, he attended A&E where it was confirmed that he had increased blood pressure, with the Complainant later being released to the care of his GP. After consultation, the Complainant was advised to monitor his blood pressure on an ongoing basis.

In January 2020, the Complainant’s team was charged with completing a project by a certain deadline. This resulted in the Complainant having to work a significant amount of overtime during the month of January, on occasion working until midnight to complete various tasks.

On 30th January the Complainant attended his GP who suggested that increased pressure at work may be the source of his health issues. Later that evening, the Complainant was working attempting to rectify a significant issue. This issue arose from other staff members having unauthorised privileges in relation to the system, a source of frustration and concern for the Complainant. At 11.23pm the Complainant suggested creating a temporary system to allow the primary system to be repaired. Such systems are usually given simple names as they are not intended to be permanent. At this point, the Complainant suggested naming this temporary account with a profanity and the Respondent’s name. At 11.45 the Complainant informed the Respondent that the evening’s events had caused his blood pressure to increase and that he would have to attend A&E tomorrow. By response, the Respondent stated that if he needed medical attention he should receive the same.

The following day the Complainant commenced work at 8 a.m. Approximately one hour after commencement the Complainant created the temporary server, the name of which contained the profanity alluded to the previous day. Approximately 40 minutes after creating the same the Complainant was approached by members of the Respondent’s HR department. At this point the Complainant was asked to pack his belongings and leave the premises. After packing his belongings, the Complainant was taken to a meeting room where he was presented with a letter stating that his employment had come to an end. This letter did not state any reason for the termination of the employment, but stated that he would be paid in lieu of notice and requested that he return any company property in his possession.

Responding the contents to the Respondent’s submission, the Complainant denied that his actions could have damaged the reputation of the Respondent. In particular, he denied that the creation of the temporary server, containing the profanity, could have resulted in difficulties with the Respondent’s listing with third parties. He further denied that the temporary server could have caused any damage to the system.

In summary the Complainant submitted that the Respondent terminated his employment in breach of the common law and his contractual rights.   He submitted that he was not given a chance to explain or defend his actions, nor was he allowed any appeal of the decision once the same had been reached.

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) of the Unfair Dismissals Act 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….”.

S.I. No. 146/2000, commonly referred to as the “Code of Practice on Grievance and Disciplinary Procedures”, sets out a basic procedure which a Respondent should follow prior to dismissing an employee. These include; putting the allegations to the Complainant in writing in advance of a hearing, allowing the Complainant the opportunity to properly defend himself at the hearing, permitting the appropriate right of representation, and allowing an internal appeal of any determination. In addition to the same, I note the Respondent’s employee handbook sets out a multi-step disciplinary process, incorporating all of the protections set out in S.I. No. 146/2000.

The complexities of this document are rendered somewhat irrelevant given the fact that the Respondent accepts it did not adhere to any of procedures enumerated therein. Rather, they have submitted that given the magnitude of the Complainant’s misconduct they were entitled to summarily dismiss him without recourse to the same. In support of this submission, the Respondent referred to the “Summary Dismissal” section of the disciplinary policy. This section empowers the Respondent to “terminate this contract with immediate effect, without notice and no liability”, in the event that the Complainant was deemed guilty of an act of gross misconduct. The Respondent also opened the case of Carvill -v- Irish Industrial Bank [1968] I.R. 325 in support of this contention.

From the outset, it is not clear that the section quoted by the Respondent entitles them to dismiss an employee without reference the rest of the disciplinary procedure. While the Respondent may have been entitled to dismiss the Complainant without notice once gross misconduct is established, the purpose of the investigation and disciplinary hearing is to lawfully establish that gross misconduct occurred. In the present case, it is apparent that the Respondent came to the conclusion that the Complainant’s actions constituted such misconduct without any investigation of the surrounding circumstances or any input of any description from the Complainant. The Complainant was provided with no opportunity to explain his actions on the morning in question or to put forward any relevant mitigating circumstances. Such actions are clearly unfair towards the Complainant and cannot be said to constitute “reasonable conduct” on the part of the employer.

Further to the foregoing, it is also not clear that the Complainant’s actions on the morning in question constituted gross misconduct in any event. From the evidence provided, it is clear that the Complainant was a highly skilled employee that had utilised these skills for the betterment of the company. It is also apparent that the Complainant was, at least occasionally, working excessive hours to meet deadlines in difficult circumstances. I accept the Complainant’s evidence that the naming of the temporary sever was an act of mild defiance borne out of frustration. The Complainant’s actions were not intended to cause any harm to the Respondent and did not in fact cause any harm. While the Complainant actions on the morning in question may have constituted some form of lesser misconduct, as accepted by the Complainant, I find that no reasonable employer would have determined that the actions in question constituted gross misconduct.

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.’

Having regard to the foregoing points and the totality of the evidence as presented, I find that no reasonable employer would have dismissed the Complainant in the circumstances. In light of the same, I find that the dismissal of the Complainant was unfair for the purposes of the Acts and the Complainant’s claim is well-founded.

CA-00034549 Complaint under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relationship to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard I note that the Complainant’s skill set is highly sought after and in demand, even during the present period of reduced economic activity resulting from the restrictions arising from the Covid-19 pandemic. In this regard, I note the Complainant’s candid acceptance that he secured alternative employment shortly after his dismissal and as a result his actual losses arising from the dismissal are relatively minimal.

Notwithstanding the same, Section 7(1)C(ii), as inserted by the Unfair Dismissals Act 1993, empowers me to award compensation not exceeding four weeks remuneration in such circumstances. Having regard to the totality of the evidence presented, I award the Complainant the sum of €5,473, or the equivalent of four week’s remuneration, in compensation.

Summary Dismissal, Procedure, Unfair Dismissal, Mitigation of Loss