Complainant

Respondent

Anonymised Parties

Sales development representative

IT services provider

Representatives

Barry O'Donnell Solicitors. Mr Arthur Cush, B.L.

 Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00034642-001

14/02/2020

The worker commenced employment with the employer as a sales development representative with an IT services company on 1/6/2019. He was summarily dismissed from his employment on the 4 November 2019 on foot of an allegation of sexual harassment towards a female colleague, alleged to have taken place in a taxi on the way home from a work Halloween party on the 31st of October 2019.

He earns €39,000 per annum.

He submitted his complaint to the WRC on the 14/2/2020.

The worker explained that he was intoxicated on the way home from a Halloween workplace party, recalled that he had to be helped out of the taxi and into his home, and couldn’t remember exactly what he had said to his female colleague, the company’s sales development manager, Ms Y.  He did write a letter of apology on the 3/11/2019 to the sales development manager, admitting to his drunken condition, acknowledging that he may have caused her offence and that he was guilty of poor judgement. He guaranteed that there would be no recurrence.

He was summarily dismissed on the 4/11/2020 in a process lacking fair procedures.

On the 4/11/2019 at 11.30, he was summoned to attend an investigation meeting timed for 11.35. With 5 minutes notice he duly attended. He was not informed of the purpose of the meeting, nor provided with copies of the company’s Disciplinary Procedure, nor advised of the right to be accompanied by a colleague. The company representatives, Ms Z and Mr X asked him did he know why he was called to the meeting. Because of his letter of apology to Ms. Y, he stated he assumed that to be the reason. During the meeting he was informed that he was being investigated for comments which constituted sexual harassment. He admitted to his drunkenness and that he couldn’t exactly recall what he had said to Ms Y on the night of the 31 October. At no stage prior to or during the meeting was he informed of the statements which he was alleged to have said to Ms Y and deemed to be instances of sexual harassment. He was advised at the end of this 10-minute meeting in response to a question by him that his contract could be terminated.

He attended a reconvened disciplinary meeting with the same company representatives 30 minutes later, though the employer had offered him an interval of an hour. He was not informed of its purpose prior to the meeting. He was not told of his right to be accompanied either before or at the disciplinary meeting. While he was told at the meeting that he was being investigated for instances of sexual harassment, he was not informed of what he had said to Ms Y, nor of the content of a colleague’s statement, a fellow passenger on the taxi journey on 31 October, made to the persons conducting the investigation. The company described the latter’s statement as” strictly confidential”

He was given insufficient time to consider and respond to the allegations. The worker believes that findings of fact had already been made in advance of the meeting. The worker’s representative states that in addition to the employer’s conduct amounting to a breach a breach of fair procedures, each and every point outlined are contrary to the contents of the employer’s disciplinary procedure only supplied on the 10/12/2019 after a request for same.

At the meeting’s conclusion, which lasted 10 minutes, he was handed a letter of termination which stated that the company “have made the decision to terminate your employment” but did not state the reason for his termination. It was only after the employer received a letter from the worker’s solicitor’s that he was informed that he was dismissed for “misconduct”.

He was escorted out of the building in full view of his colleagues.

He was not informed of the right to appeal his termination until 18/11/2019 after his solicitor requested same. A right to appeal is provided for within the employer’s disciplinary procedure as is a requirement that the right to appeal is to be specified within the sanction / termination letter. He was not provided with copies of the employer’s Disciplinary Procedure until the 10/12/2019, following a request from his solicitor which was well after the deadline for the delivery of the grounds of appeal had elapsed.

The appeal procedure was conducted on the 16 January 2020.The worker ‘s appeal was based on the lack of fairness in the procedures. The employer sought to rely on minutes of the meeting of 04/11/2019 which were created six weeks after the dismissal.

The Employee Relations Manager affirmed the decision to terminate his contract on the 4th of February.

The employer did not attend the hearing. The employer’s solicitor requested that their written submission, specifically the appeal outcome document be considered and that it be appended to the adjudicator’s recommendation. The respondent stated on 3 May 2020 that they would not be bound by a recommendation as the worker had been offered fair procedures.

Their written submission is set out in this section of the recommendation.

The worker was employed with the company for a period of less than 6 months and was given notice of dismissal during his probationary period, following a complaint of misconduct which was investigated by the company. The misconduct entailed sexual harassment by the worker of his manager. In a drunken state he required assistance to collect his belongings and access his own home. He invited Ms Y into his home for a drink, so he could, as he put it,” f… her whenever he wanted.” Ms. Y’s statement was given to the worker at the appeal hearing and was not contested by the worker. The appeal against the dismissal was held under the company’s disciplinary procedure.

The employer’s case is that firstly the protection of disciplinary procedure is not a contractual entitlement, and this is expressly stated in his contract of employment. Without prejudice to that point, the respondent stated that any omissions in the process were corrected in the appeal process. The worker knew the nature of the allegation against him at the investigation and disciplinary stage of the process.

The meetings were brief because there was just one issue -his behaviour towards Ms Y on 31 October. He was given an opportunity to respond to the allegation and he did so.

The omission of advising the worker of the right to be represented and the non- disclosure to him of witness statements were rectified at the appeal stage which occurred on 16 January 2020.

The company state that an appeal is not normally available to a employee on a probationary contract but that the company made an exception for the worker given his concerns about the procedure.

They acknowledge that they took no note of that meeting on the 4/11/2020.

The facts as to what happened between the worker and Ms Y on the 31 October are not contested.

The worker ‘s case is that there was a total absence of fair procedures in the dismissal process.

The right to fair procedures while on probation was affirmed by the Labour Court in the case of Beechside Company Limited T/A Park Hotel Kenmare v A Worker. LCR 21798. In that case, the claimant, a former General Manager of the hotel, had been employed for two weeks and was summarily dismissed when he was called to a meeting to be told by his employer that “things were not working out.” The Labour Court held that while an employer has the right, during a probationary period, to decide not to retain that employee in employment, this can only be carried out where the employer adheres strictly to fair procedures. The employee was denied natural justice in his dismissal. The recommendation was for the payment of a sum of €90,000 to him.

Furthermore, the Court of Appeal in Donal O’Donovan v Over-C Technology, [2021] IECA 37 recently affirmed that an employee dismissed for misconduct during the probationary period is entitled to fair procedures.

I do not accept that because the worker’s contract expressly excludes the disciplinary procedure from the range of contractual entitlements available to him that this somehow relieves the employer of the obligations resting with them by virtue of S.1 146/2000.  S.I 146 requires that the details of any allegations or complaints are put to the employee in advance of an investigation or disciplinary hearing, that the worker has the right to be represented during the procedure, and a right to appeal a decision to dismiss. It is too late to correct this at the appeal stage. The letter of dismissal was handed to him at the end of the disciplinary meeting which lasted 10 minutes. It was obviously a foregone conclusion and written between the investigation meeting and the disciplinary meeting conducted by the same persons.

No matter how poor, offensive or career- ending the conduct, the employer does not have a pass to short circuit the fair procedures and natural justice owed to the worker facing the termination of his employment during probation. This was denied to this worker.

 I recommend that the employer pay the worker €6000 as a settlement for their failure to offer him fair procedures in terminating his employment.

I recommend that the employer pay the worker €6000 as a settlement for their failure to offer him fair procedures in terminating his employment.

Termination of contract during probation; lack of fair procedures.