Complainant

Respondent

Anonymised Parties

A Maintenance worker

 An Hotel

Representatives

Donough Cleary , Cleary & Co

Denis O Mahony,  VP McMullin 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-00034459-001

05/02/2020

The Complainant was dismissed by his uncle, a director of the Respondent (a company which owns a number of family-run hotels.) The Complainant’s dismissal occurred following the discovery by Complainant’s uncle that his nephew had been having an affair with his son’s (the Complainant’s first cousin, hereinafter referred to as Y) wife (hereinafter referred to as X) who was separated from Y. The Complainant did not deny the relationship. It was the Complainant’s case that he did not know that his conduct might put his job in jeopardy, that this was a matter within his private life and was not relevant to his employment. He asserts that the dismissal was unfair, both procedurally and substantively.

The Complainant worked as a hotel maintenance operator for the Respondent.  The director of the Respondent, and the Complainant’s employer, was his uncle and godfather.

The Complainant‘s cousin (Y) was the son of his uncle and also worked as a hotel maintenance operator alongside the Complainant.

On the 15th of August 2019 the Director met the Complainant early in the morning with another party and told him that they needed to talk. The Director told the Complainant to get into his car and to go home. The Complainant said in response “has this got to do with X?”

The Director treated this comment as being an admission of what he had suspected (and had additional evidence to support) namely that the Complainant had been conducting a relationship with Y’s wife.

The Director told the Complainant that he did not like how he was treating Y and that he had no option but to go home. The Director accepted in evidence that this was a dismissal of the Complainant.

The Director gave evidence during the adjudication hearing that, given the Complainant’s admission, it was no longer possible for him to keep working within the family business particularly given that he worked alongside Y.

It was accepted by the Director that his son and X were not living together at the time, but it was the hope of the family that they would get back together again.

Y did not attend the hearing and there was no evidence whether he, as distinct from his father, was hopeful that he and X would resume their marriage again.

The Respondent relies on Heffernan v. Dunnes stores 2011 ELR 202 which upheld that misconduct (in that case, the posting on a social media platform of disparaging comments about a director of the employee’s company) constituted a breach of trust of such significance that the Complainant’s continued employment became untenable.

Reliance is also placed on other authorities dealing with wrongdoing of a criminal nature outside work hours.

In addition, the Respondent relies on section 7 (2) of the Unfair Dismissal Act 1977-2021 whereby compensation payable in an Unfair Dismissals complaint may be reduced by an Adjudication Officer if s/he finds that the conduct of the employee contributed to his dismissal.

The Complainant started work on the 9th of February 2017 and was dismissed on the 15th of August 2019.

The loss arising from the dismissal (not taking into account social welfare payments, as per the Unfair Dismissals Act 1977-2021) is the sum of €3464 (five weeks loss of wages.)

The Complainant does not deny that he had a romantic liaison with X who was his cousin’s wife, although he denies that it was “a relationship”.

The Complainant’s evidence was that X had told him that she and Y had been separated for two years and because of this it was the Complainant’s view that it was a private matter between him and X. It did not impact on his job, it was his choice and his private life. Given that X and Y were separated he didn’t believe that there was anything wrong in him with going out with her. He wasn’t aware X and Y were trying to get back together again or that the family wanted that. He contended that what he had done was not gross misconduct. He contended that there was no reference or definition of gross misconduct in his contract/ job description.

He contended that no fair procedures were adopted in the manner in which he was dismissed. He was summarily dismissed. He did not accept that what he did was a dismissible offence or that when he embarked upon the liaison with X that he thought that there was anything wrong with it. He accepts that he did not tell anyone about it, but that wasn’t proof of guilt, just a desire for privacy.

Legal Submissions on behalf of the Complainant rely on the following points:

There was no definition of gross misconduct in the contract of employment

The dismissal was made summarily, and no fair procedures were used by the Respondent.

The “breach of trust and confidence” authorities relied on by the Respondent relate to conduct which impacted upon the performance of an employment contract. It is not accepted that the Complainant’s conduct undermined his ability to do the job or gave rise to trust in his capacity to perform job functions.

Other authorities relied upon by the Respondent deal with criminal activity outside the workplace are not relevant to these proceedings.

Preliminary Determination

At the outset I have considered section 41 (14) (b) of the Workplace Relations Acts 2015-2021 and on my own motion due to what I consider to be the existence of special circumstances I determine that the identity of the parties should be anonymised in the decision as published by the Commission.

The special circumstances that prevail are that if the identity of the parties were to be published this would in turn identify third parties who are referred to in the evidence but who were not present at or involved in the adjudication hearing. As evidence was given about and against these third parties and in light of the personal nature of this evidence, because these parties were not present to counter the assertions, it would breach the privacy rights of those third parties, were they to be identified by association with the parties to the Adjudication.  For this reason, I determine that this decision shall be anonymised.

Substantive Determination

In order for a dismissal, based on gross misconduct, to be fair, prior to an employee embarking upon actions for which he is subsequently dismissed, he must be aware (or should be) that that such actions are likely to constitute gross misconduct and are likely put his job in jeopardy.

The Complainant accepted in evidence that, prior to being dismissed, he admitted being romantically involved with X and when he said to the Director “Is this about X?” the treatment of this comment by the Director as being an admission of his involvement with X was not contested by the Complainant. It follows that the finding of fact upon which the Respondent relied to dismiss the Complainant, that he was romantically involved with X, was not disputed at the adjudication and was not in dispute prior to his dismissal.

In this respect, the absence of fair procedures as complained of by the Complainant, are not fatal to the defence of this complaint. Fair procedures do not exist as an entitlement in a vacuum. In this case they are relevant to the finding of fact that was reached, which is not in dispute.

The issue that is required to be addressed in this Adjudication is whether the admitted actions of the Complainant amounted to gross misconduct or did they not?

There was nothing in the Complainant’s contract that forbid what he did. In respect of the contention that there was a breach of an implied contractual term, the Complainant contends that it was his understanding that his cousin and his wife had separated for some a number of years and, in his view, there was nothing wrong in what he did, given that it took place outside his contract of employment.

The Respondent contends, that it was obvious that there was an implied contractual obligation that the Complainant would not enter into a relationship with the wife of the Director’s son (who was his cousin and who he worked alongside) and because he admitted to it, that the trust and confidence between him and his uncle (and other family members in the business) became irreparably damaged and the Complainant’s continued employment became untenable. 

So the questions seem to be: Does an implied obligation arise in the first instance? And if it does, did Complainant know that when he embarked upon the liaison, that he put his employment into jeopardy? And is this implied obligation greater because of the close family nature of the business?

Implied contractual terms are relied on less and less frequently in unfair dismissal cases, mainly because, if something is not expressly forbidden an employee can successfully contend that he/she is not on notice that (a) the specified conduct was wrong and/or (b) that by engaging in the conduct so he/she knowingly put his/her job in jeopardy. However, implied obligations - to not steal, to not assault, to maintain trust and confidence– where they are so obvious (applying an officious bystander test) that they cannot reasonably be denied –still apply to employment contracts.

The question in this case, is whether the Respondent can successfully argue that the Complainant’s conduct fell into the “obvious” category of cases, or did it not?

It is of significance that there is an evidential missing part in the Respondent’s case, which is what the attitude of Y to this relationship. There was no evidence that Y– the person most impacted by the liaison – objected to relationship or did not. And this evidence cannot be assumed. The Complainant’s evidence was that, as far as he knew, X and Y had been separated for 2 years, a claim that was not contested by the Respondent.

If Y’s evidence been that his marital relationship was over, that he was indifferent to what happened, the Respondent/ his father would have no basis to object to what happened and the Complainant could reasonably contend that he didn’t think his actions would put his job in jeopardy.

If Y’s position was the opposite, that it was a betrayal of him by his cousin, that his actions undermined his attempts to mend his marriage and that the Complainant was aware of this, then the Complainant could not reasonably contend that he was unaware that his conduct put his job in jeopardy or made the continuation of his employment untenable - in which case reliance by the Respondent on the implied term – to maintain trust and confidence - might well succeed. Another prospect for an Employer, if the evidence was other than it was in this case, might be a reliance on the less used “some other substantial ground” provision in section 6 (6) of the Unfair Dismissals Act 1977-2021.

However, in the absence of Y’s direct evidence or other evidence identifying Y’s position, the existence of or breach of this implied term cannot be assumed, because without it, it is not correct to say that the Complainant knew or ought to have known that that his employment would be jeopardised by the conduct. It is not the role of anyone other than Y to give the evidence that he would not have been able to work alongside the Complainant.

On the balance of probabilities and on the basis of the evidence before me I am not satisfied that the Respondent has discharged its obligation to provide evidence that prior to embarking upon relations with X, that the Complainant knew or ought to have known that his actions were likely to jeopardise his employment. I am not satisfied therefore that the dismissal was fair.

On the above basis find the complaint to be well-founded

Redress:

I am not satisfied that the Complainant contributed to the dismissal in that having found that the Respondent did not prove that the Complainant was aware that his conduct would result in his dismissal it would be inconsistent then to find that on this same basis, that his actions contributed to the dismissal.

However, I am not satisfied that – given his qualifications and work experience – the Complainant has adequately evidenced his loss, particularly, that he has not adequately evidenced his attempts to mitigate his loss in the five weeks following his dismissal.

Under section 7 (1) (c) of the Unfair Dismissals Act 1977-2021, I order compensation to be paid to the Complainant in accordance to what is just an equitable having regard to all the circumstances, as being one net week salary, €487.50.

On the basis of the reasons as set out I find this complaint to be well founded.

Award: €487.50.

Non-publication of parties names– special circumstances – unfair dismissal – gross misconduct – implied contractual terms – failure to mitigate loss