Complainant

Respondent

Parties

Siobhan  Hopkins

Active Retirement Ireland

Representatives

Barry Cullen

 Peninsula

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00038845-001

21/07/2020

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

CA-00042215-001

29/01/2021

The Respondent operates as a national membership organisation that aims to enable older people to lead full, happy and healthy lives through a range of activities organised by older people themselves through local Active Retirement Associations.  The Complainant was employed by the Respondent as a Membership Support Officer from 6 January 2016 until 6 October 2020.  The Complainant has submitted a complaint under the Unfair Dismissals Act 1977 claiming that she was unfairly dismissed by the Respondent.   The Complainant has also submitted a complaint of discrimination on the gender ground under the Employment Equality Acts 1998 – 2015.

The Respondent submits as follows:

The Complainant was employed by the Respondent as a Membership Support Officer from 6 January 2016. Her employment was uneventful and a large amount of trust was placed in her by the Respondent. 

The Complainant had raised a grievance on 22 October 2019  in respect of a colleague, the Head of Communications and Public Affairs, who is closely related to the CEO.  The Respondent confirmed verbally to the Complainant that an investigation into the allegation was actioned.  

Suspension

It came to the Respondent’s attention that there was a suspicion that the Complainant had breached the trust of the Respondent by her involvement in alleged interference with the Head of Communications and Public Affairs’ PC and the alleged reading aloud of private messages from his PC during the course of her work day on 8 and 9 January 2020 while the Head of Communications and Public Affairs was absent from the office.

The incident in question was brought to the attention of the Respondent by two members of staff –  the Membership and Digital Communications Officer and the Fundraising Manager. 

On foot of these allegations the Complainant was brought into the CEO’s office, and informed that she would be put on paid suspension while the Respondent investigated the allegations.  It was expressly explained to the Complainant that this suspension was not regarded as a disciplinary action.  

Investigation Procedure

On 22 January 2020 the Complainant was invited by the Operations and Finance Manager to attend an investigation meeting to be held on the 24 January 2020 in the bar of a nearby hotel. The purpose of the investigation meeting, as outlined in the letter to the Complainant, was to investigate the following matters:

·       “Alleged interfering with a colleague’s PC during the course of the day to solicit private information on them/or the business on more than one occasion

·       Alleged reading aloud private messages from the same PC about a colleague

·       Alleged breach of trust between you and us to commit such an act and to be unprofessional during the course of your work”

The Complainant replied to the Respondent by email dated 23 January 2020 and explained that she could not attend the meeting for the following reasons: 

·       She was not informed as to why she was being suspended;

·       The invitation to the investigation meeting did not state who was carrying out the investigation meeting or their qualifications; and

·       The Complainant felt that she should have outside representation as the organisation was very small with only six members of staff one whom was the CEO who had suspended her,  another was closely related to the CEO and the other two members of staff were people with whom the Complainant worked on a daily basis.

In an effort to ensure a fair, independent and impartial investigation, the Respondent engaged an external HR provider to carry out an investigation into the allegations against the Complainant. The external HR provider was engaged on 27 February 2020 but due to unforeseen circumstances the investigation did not commence until 25 March 2020, due to no fault on the part of the Respondent. 

As part of the investigation, the Complainant, the Head of Communications and Public Affairs, the Membership and Digital Communications Officer and the Fundraising Manager were interviewed.  The Complainant was provided with the witness statements of the other staff members. 

In her interview, the Fundraising Manager stated that on 8 January 2020 she was working from home. She confirmed that the Respondent has a procedure in place with regard to accessing a colleague’s PC and that should an employee require access to a colleague’s PC, they were required to seek permission to do so.   She said that on 9 January 2020, the Complainant brought to her attention that she had been reading a message on the Head of Communications and Public Affairs’ PC. The Fundraising Manager advised the Complainant that she should not do so.  The Complainant responded that she only read the summary.

In her interview, the Membership and Digital Communications Officer stated that on 8 January 2020, the Complainant moved the mouse of the Head of Communications and Public Affairs’ PC and the screen lit up.  She alleged that the Complainant had invited her to come and look.  She refused and she felt uncomfortable about doing so.  The Membership and Digital Communications Officer recalled that the Complainant informed her that the Head of Communications and Public Affairs had a message from his wife, a Dad’s group, and the Operations and Finance Manager.

The Membership and Digital Communications Officer then stated that on the following day, 9 January 2020, the Complainant informed her that she thought the Head of Communications and Public Affairs had caught her at his PC that morning. 

On foot of the witness statements being provided to the Complainant, she addressed these matter in an email to the Investigator dated 16 April 2020.  The Complainant confirmed that she “leaned in closer and saw that it was a WhatsApp for Dads group” and “on the way back, I had another look at the screen. I looked at his friends list which was showing alongside the open WhatsApp for Dads group chat. I could see that there was a message from [the Operations and Finance Manager] and another message from an [named woman], who I assumed is [his] wife”. 

Elsewhere in the email, the Complainant wrote that “I had another look at his computer”. The Complainant also sets out that on the second day, being the 9 January 2020, she “touched a button on [his] PC to see if it was still on to check” and “that [he] might know that I touched his keyboard because the home screen was now on display and not in sleep mode, as it was before I touched it”. 

The decision of the Investigator was that Complainant had a case to answer for in respect of all three allegations. 

Disciplinary Procedure

The Respondent then engaged a different external HR provider to carry out a disciplinary process, again to ensure an independent impartial process. 

In his report, issued on 17 July 2020, the Disciplinary Officer confirmed that a disciplinary process had been carried out and set out the timeline and details of the parties interviewed together with the submissions and the cross-examination.  The disciplinary recommendation was to dismiss the Complainant from employment with one months’ notice to be paid in lieu of working which was set to expire on 16 August 2020.  The Disciplinary Officer informed the Complainant of her right to appeal and confirmed the identity and contact details of the nominated independent Appeals Officer.

On 20 July 2020 the CEO emailed the Complainant to inform her that the Respondent “was taking the report under consideration”.

The Complainant responded to the CEO on 24 July 2020.  Within her email, the Complainant wrote that “it would be wise for the organisation as a whole, to pause and consider what it might be getting itself into”.  The Complainant then proceeded to outline her issues with the grievance decision.

One such issue, which the Complainant had not raised previously, was the sister relationship that existed between the HR provider which recommended the suspension of the Complainant and the HR provider which carried on the investigation.  The Respondent would contend that, while these companies operate under the same business umbrella, they operated totally independently, and it is the Respondent’s submission that it engaged the second HR provider for the purpose of having an impartial and independent investigation.  The Respondent would contend that the Complainant was afforded every opportunity to raise her grievances or challenge the procedures during the investigations.

The Complainant also raised an issue about the brevity of the disciplinary report. This is disputed by the Respondent who is of the view that the Disciplinary Officer carried out a thorough report into the incident and took the opportunity to clarify any areas of ambiguity and included the Complainant in all stages of the process. 

The CEO wrote to the Complainant on 6 October 2020 confirming her dismissal and reminding her of her right to appeal.

Appeal Procedure

On foot of the disciplinary report, the Complainant emailed the nominated independent Appeals Officer on 30 July 2020 setting out the grounds of her appeal.  The Appeals Officer conducted a virtual meeting with the Complainant on the 6 August 2020, prior to her being dismissed formally by the Respondent organisation.  The Respondent would suggest that contacting the Appeals Officer was premature as the Complainant was not summarily dismissed for gross misconduct until 6 October 2020.  The Complainant sent on an additional 4-page document dated 12 October 2020 to the Appeals Officer.

The Appeals Officer noted in her appeal decision that she had “reviewed the extensive documentation available in respect of the investigation and disciplinary processes”.  This documentation included the 15 page submissions by the Complainant.  The Respondent would contend that the Operations and Finance Manager was only afforded a very short meeting to provide the Respondent’s input into the appeals process.

The decision of the Appeals Officer can be summarised as follows: 

·       The Respondent Company acted in accordance with the professional external advice they had received

·       Unfortunately, the matter had been protracted for a significant period (this is disputed by the Respondent who would contend that any delay was not caused by the actions of the Respondent and that the Complainant did not suffer any detriment). 

·       There was no dispute that certain events did occur in January and “by her own admission [the Complainant’s] actions were inappropriate”. 

·       However, the Appeals Officer decided that these actions did not amount to gross misconduct and found that the sanction was disproportionate to the actions of the Complainant. 

Based on the above, the Respondent organisation believed the Appeals Officer had been influenced favourably by the Complainant with a relationship developing. The Respondent is of the view that the Appeals Officer engaged completely and favourably with the Complainant and failed to engage with the Respondent organisation.   The Respondent believes that the appeal process was flawed, and the Appeals Officer engaged with the Complainant when not instructed to do so and failed to gather all relevant evidence. 

By letter of 3 November 2020, the CEO informed the Complainant that the Respondent organisation had chosen not to follow the decision of the Appeals Officer and that the decision of the Disciplinary Officer still stood.

The Respondent engaged external HR providers to ensure an independent investigation, disciplinary and appeals process. The Respondent delegated the procedural aspects to these entities. However, the Respondent is not duty bound by the recommendations of the external HR providers.  The Respondent considered the recommendations as set out by all parties and reviewed all recommendations and decisions of each report. 

The Respondent has a duty to determine if the advices and decisions presented to it align with the Respondent organisation and the sanctions as set out by it.  The Respondent submits that the disciplinary procedure and decision to dismiss the Complainant for gross misconduct was not only fair but proportionate and the Complainant had been furnished with an Employee Handbook, which set out the actions that would qualify as gross misconduct. 

Summary of the direct evidence of the CEO

The CEO stated that she had a positive working relationship with the Complainant prior to her dismissal.

The CEO confirmed that the Operations and Finance Manager brought the matter of the Complainant’s alleged misconduct to her attention on 20 January 2020.  The CEO asked the Operations and Finance Manager if the complaint was in writing.  The Operations and Finance Manager confirmed that the Membership and Digital Communications Officer had made a formal complaint to the Operations and Finance Manager about the Complainant’s alleged misconduct on 20 January 2020 via email.

The CEO stated that she felt that the matter was very serious and sought external HR advice.  In light of the advice she received, the CEO identified the Complainant’s alleged misconduct as alleged gross misconduct.  The CEO spoke to the Complainant on the morning of 21 January 2020 and explained to her that she was being suspended on full pay with immediate effect for alleged gross misconduct.  The CEO confirmed that the Complainant’s suspension was communicated verbally to her and that the Respondent organisation did not have any documentation relating to the suspension. 

The CEO confirmed that the decision to suspend the Complainant was based on the information contained in the Membership and Digital Communications Officer’s email of 20 January 2020.  The CEO felt that she had no other option.

In response to a question from the Adjudication Officer, the CEO confirmed that she had never seen a copy of any of the WhatsApp messages which the Complainant was alleged to have read on the Head of Communications and Public Affairs’ PC.  When a copy of the message between the Head of Communications and Public Affairs and the Operations and Finance Manager was provided to the adjudication hearing by the Operations and Finance Manager, the CEO confirmed that she had never seen the content of the WhatsApp message before the adjudication hearing. 

With regard to the appeal, the CEO felt that there was a problem with the Appeals Officer’s methodology in that the breach of trust had not been adequately addressed and that this was critically important in a small organisation.  In response to a question from the Adjudication Officer as to why she had not appointed a new Appeals Officer, the CEO responded that she did not see the need to do so.  She did not feel that it was appropriate to have a new appeal.

The CEO confirmed that she made the decision to dismiss the Complainant as she felt that the Complainant’s actions represented a major breach of trust and that it was not appropriate for one colleague to access the PC of another colleague.

The CEO stated that she did not believe that there was any conflict of interest in her decision to dismiss the Complainant for accessing the PC of her close relation.

Summary of the direct evidence of the Operation and Finance Manager

The Operations and Finance Manager stated that at a support and supervision meeting on 17 January 2020, the Membership and Digital Communications Officer informed her of an alleged incident concerning the Complainant and a colleague’s PC.  A number of other matters were also discussed at the meeting.  The Operations and Finance Manager asked the Membership and Digital Communications Officer, as was her practice, if she wished to raise any of these issues as a formal matter.  The Membership and Digital Communications Officer confirmed that she only wished to formally raise the alleged incident regarding the Complainant and a colleague’s PC.  The Operations and Finance Manager explained that any matters which she wished to raise formally would have to be put in writing.  The Operations and Finance Manager confirmed that she did not discuss the matter further with the Membership and Digital Communications Officer after she received her email of 20 January 2020.

The Operations and Finance Manager explained that she wrote to the Fundraising Manager on 22 January 2020 because it was a chance to investigate the alleged incident between the Complainant and a colleague’s PC.

The Operations and Finance Manager stated that the Respondent got independent external HR advice on 20 January 2020 that the alleged incident concerning the Complainant and a colleague’s PC was a serious incident and that the Complainant should be suspended on full pay. 

On  21 January 2020, the Operations and Finance Manager asked the Complainant to join herself and the CEO in the CEO’s office where the Complainant was informed of her suspension.

The Operations and Finance Manager stated that she was not involved in in investigation process and was never interviewed by the Investigator.

The Operations and Finance Manager confirmed that the CEO engaged the external Disciplinary Officer and that she was interviewed by him and that the Complainant and her representative were given the opportunity to cross-examine her.

The Operations and Finance Manager confirmed that she was interviewed as part of the appeals process and that as far as she could remember, the CEO suggested giving the Appeals Officer a document showing the layout of the Respondent’s office.  She said that the Complainant was never given an instruction to contact the Appeals Officer.

With regard to the appeal, the Operations and Finance Manager said that the point of trust was missing from the report. For her, not being able to trust each other was huge.

Conclusion

The Respondent denies that the Complainant was unfairly dismissed.  The Respondent relies on section 6 (4) of the Unfair Dismissals Act which provides that the dismissal of an employee shall be deemed not to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee. It is the Respondent’s position that the Complainant was dismissed due to gross misconduct arising from the interference with a colleague’s PC and reading aloud private messages and that due to these actions a breach of trust had occurred between the Complainant and the Respondent. 

The Respondent asserts that the Complainant was afforded natural justice and fair procedure throughout the disciplinary process. 

In respect of the nature and extent of the enquiry carried out by the Respondent, the Complainant was invited to attend an investigation meeting to address the allegations raised. The Complainant was then invited to a disciplinary meeting and following a decision to terminate the Complainant’s contract due to gross misconduct she was further offered the opportunity to appeal the decision of the Respondent. 

The factual evidence accumulated was reviewed and the actual decision, a decision to be made by the Respondent organisation, was proportionate to the offence.

The Respondent’s decision reflected the trust which goes to the core of the employer/employee relationship and which, the Respondent would contend, had been irreparably damaged through the Complainant’s actions.

It is submitted that the Respondent acted reasonably and proportionately in the circumstances of this case.  The Respondent would argue that the correct procedure was followed, that the correct standard of proof was applied and that the correct outcome was achieved given the nature of the allegations.

The Respondent relies on the following precedents in support of its position:  Hennessy -v- Read & Write Shop Ltd UD 192/1978, Frizelle -v- New Ross Credit Union Ltd [1997] IEHC 137, Brendan O’Callaghan v Dunnes Stores UD 54/2012, MN 25/2012, WT 14/2012, Elia Erian Aziz v The Midland Health Board [1995] E.L.R. 48, Loftus and Healy -v- An Bord Telecom (13 February 1987, unreported, HC),Pacelli -v- Irish Distillers (UD 57I / 2001), Barry v Precision Software Ltd. (UD 624/2005) [2006] 10 JIEC 1801, Allied Irish Banks Plc v Brian Purcell [2012] 23 E.L.R. 189 and McCarthy -v- O'Sullivan Bros DIY (UD800/1989) / [1991] ELR 44

The Complainant submits as follows:

The Complainant was dismissed by the Respondent on 6 October 2020. The Complainant contends that her dismissal was unfair as there was no gross misconduct to warrant either her suspension or dismissal.

The Complainant further contends that the suspension, investigations and disciplinary process were prejudicial towards the Complainant because at all stages from pre-suspension through to the  disciplinary process, the procedures used disregarded obvious conflicts of interest in the management of the investigations and the disciplinary process, and in the supply, and withholding of, information.  Additionally, the Complainant contends that the Respondent contravened its own Employee Handbook in several respects.

Suspension

On 22 October 2019, the Complainant raised an issue about a colleague, the Head of Communications and Public Affairs, who is closely related to the CEO.   On 21 January 2020, the CEO, acting on advice from external HR advisors, suspended the Complainant. 

The Complainant contends that an employee is unequivocally entitled to know why they have been suspended. In Reilly-v- Bank of Ireland, the definitive case in this regard, Mr Justice Noonan noted that basic fairness required “at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response”. The Complainant  was not given any details of the reasons for her suspension nor was she given an opportunity to offer any explanation. Having surrendered her keys and other materials in the presence of others she was escorted to the door, and never returned.

Later on the 21 January 2020, the Complainant emailed the CEO requesting a meeting by close of business to give the CEO an opportunity to explain to the Complainant why she had been suspended.  The Complainant did not receive a response to her email. The Complainant contends that the CEO should have responded to her email as a meeting between them, as well as explaining why she as suspended, would also have given the Complainant an opportunity to respond to the allegations and would have gone some way to relieving her understandable distress.

In the hours after her suspension, the Complainant was under the misapprehension that her suspension was connected in some way to the October 2019 complaint which she had made against her colleague.  The Complainant believes that the Respondent, in suspending her on 21 January 2020, one week prior to her scheduled support/supervision session with her line manager, hoped to prevent the Complainant from continuing to raise issues which were first raised at a previous support/supervision meeting in October 2019 in relation to her colleague.

The allegation of gross misconduct was outlined for the first time in a letter sent to the Complainant by the Operations and Finance Manager on 22 January 2020.  The Respondent alleged that the Complainant had interfered with a colleague’s PC on 8 January 2020 to solicit private information in relation to the colleague and the Respondent organisation.  The Respondent also alleged that the Complainant had read aloud private messages from the colleague’s PC. The Respondent further alleged that a breach of trust had occurred as a result of the Complainant’s actions. 

The Complainant responded by email on the following day, 23 January 2020, in which she stated:

“… for the record I never interfered with another colleague’s computer to solicit private or other information. As I never solicited such information, I have not shared any information so solicited, allegedly. Therefore the issue of breach of trust does not arise.”

In her 16 April 2020 statement to the Investigator, which was the Complainant’s first opportunity to respond to the allegations within a formal investigative process, she acknowledged there was an incident during which she noticed, on her way to the tea station, that the Head of Communications and Public Affairs’ PC was open with WhatsApp on display.  She leaned closer and saw that it was open on a WhatsApp group.  Later she mentioned to her colleagues in the office that there were messages from two individuals who she named.

The Complainant contends that during this incident the PC screens were already open, that she did not interfere with the PC in any way, that she did not solicit information, and that she did not read aloud any messages, or parts of messages from the PC. 

The Complainant contends that when the Respondent decided to suspend the Complainant, the only direct testimony available to it was that given by the Membership and Digital Communications Officer in an email statement which she sent to the Operations and Finance Manager on 20 January 2020.

The Complainant submits that in her statement of 20 January 2020, the Membership and Digital Communications Officer concurs with the Complainant’s position that the screen was open when she stated that the Complainant “commented on the screens he [the Head of Communications and Public Affairs] had open”.  

In the same statement the Membership and Digital Communications Officer, however, contradicts this position by suggesting the screen was activated by an action taken by the Complainant. Thus, she claims, the Complainant: “……moved the mouse. Obviously, this activated the screen.”   This claim that the Complainant “moved the mouse” is the only direct reference in the Membership and Digital Communications Officer’s 20 January 2020 statement of an act by the Complainant that could be classed as interference with the PC. 

The Complainant submits that at no stage did the Membership and Digital Communications Officer in this or any other statement or interview use any of the phrases “interfered”, “interfere” or “interfering”; these phrases were first used by the Respondent when it wrote to the Complainant on 22 January 2020 to outline the allegations against her.

The Complainant further submits that, at no stage, did the Membership and Digital Communications Officer use the phrase “read aloud”. The Complainant contends that this phrase was used for the first time in the 22 January 2020 letter to the Complainant sent by Respondent.

The Complainant contends that the Operations and Finance Manager’s understanding of what she was being told by the Membership and Digital Communications Officer, was that there had been interference with the Head of Communications and Public Affairs’ PC by the Complainant.  This was reflected in her cross-examination by the Complainant and her representative during the investigation when she stated that the Complainant “went to [the Head of Communications and Public Affairs] machine and moved mouse, and opened the screen.”  

The Complainant contends that the Membership and Digital Communications Officer’s claims that the screens were activated is not repeated in either of her subsequent interviews with the Investigator or with the Disciplinary Officer. However, because her 20 January 2020 statement was withheld from the Investigator, this inherent contradiction in her statements about “open” and “activated” screens did not come to light until 6 July 2020 when her 20 January 2020 statement was first made available.

The Complaint asserts that the Operations and Finance Manager also had a second meeting with the Membership and Digital Communications Officer to discuss the Complainant on the morning of 20 January 2020.  However, in her cross-examination by the Complainant during the disciplinary process, the Operations and Finance Manager denied having any meetings with the Membership and Digital Communications Officer after 17 January 2020.  The Complainant submits that the first time she heard about this meeting was on 27 August 2020.

The Complainant further contends that, as she works in the office where the alleged incident occurred, the Operations and Finance Manager would have known that had the Membership and Digital Communications Officer remained at her desk, as suggested by her 20 January 2020 statement, she would be unable, given the layout of the office, to observe the Complainant moving the mouse if she had done so.  

The Complainant contends that as Office Manager, and as the Complainant’s line manager, the Operations and Finance Manager should have undertaken an assessment of the layout of the office when the allegation against the Complainant was first made.  The Complainant suggests that there is no evidence that the Operations and Finance Manager had done so.

The Complainant would further contend that there is no evidence that either the Investigator or the Disciplinary Officer enquired into the layout of the office and they accepted the Membership and Digital Communications Officer’s evidence in this regard. It should be noted, however, that the Appeals Officer enquired about the layout of the office.

With regard to the second allegation, the Complainant contends that the only direct evidence available at the time of her suspension to support the allegation that she “read aloud private messages from the same PC about a colleague” is the testimony of the Membership and Digital Communications Officer who, in her 20 January 2020 statement, stated that the Complainant “commented on the fact that you [the Operations and Finance Manager] had messaged him [the Head of Communications and Public Affairs] in relation to the meeting he was attending and that it was sent at about 2pm”.

The Complainant contends that the decision of 20 January 2020 to suspend her for alleged gross misconduct, was made on the basis of a statement that was inherently contradictory, a contradiction that should have been identified at the time and taken into account when a decision of such enormous consequence to the Complainant was being made.

Additionally, the Complainant asserts that there were issues between herself and the Membership and Digital Communications Officer and that this was alluded to an email of 20 January 2020 from the Operations and Finance Manager to the CEO.  The Complainant submits that she had also previously informed  the Operations and Finance Manager that there were issues between herself and the Membership and Digital Communications Officer.  The Complainant cannot understand, therefore, how she was suspended based on the evidence of the Membership and Digital Communications Officer.

The Complainant further contends that the complaint which led to her suspension concerned a ten-day old incident which had not caused any detriment to the colleague whose PC she had looked at. Furthermore, there was no evidence presented of an IT security breach and no evidence that an IT audit had been carried out.  Indeed, the Complainant would contend that the colleague whose PC the Complainant had allegedly accessed, in leaving his PC open, demonstrated a lax attitude to IT security.  The Complainant contends that there was no immediate risk to the organisation or its members and that by suspending her in the manner that it did, the Respondent acted in a prejudicial manner, setting the whole tone for disciplinary process that followed.

The Complainant contends that the CEO should have taken into account her own potential conflict of interest given that the PC which was allegedly interfered with belonged to her close relation, and that the Complainant had not been responded to directly in writing in relation to a complaint she had submitted in October 2019 against the same close relation.

The Complainant asserts that in making the decision to suspend the Complainant, the Respondent and its advisors also had access to a statement from the Fundraising Manager, which by her own account was hearsay. The Fundraising Manager claims she had a conversation with the Complainant and claims that the Complainant had shared with her that she had read the Head of Communications and Public Affairs’ WhatsApp messages, but also that in the same alleged conversation, that the Complainant denied reading the same WhatsApp messages. The Complainant contends that the Fundraising Manager’s statement did not include any direct testimony about the alleged event.  The Complaint would further contend that on reading the Fundraising Manager’s statement on the afternoon of 20 January 2020,  it should have been apparent to the Respondent and its HR advisors, that the statement was not only contradictory hearsay, but had been solicited by the Operations and Finance Manager even though the Fundraising Manager, by her own account, did not witness the incident.

The Operations and Finance Manager suggests that both the Fundraising Manager and the Membership and Digital Communications Officer came forward independently to raise the incidents which led to the Complainant’s dismissal.  In relation to the Fundraising Manager, who according to herself, was not present during the alleged incident, it is clear that she did not come forward at all, but rather, as per her statement to the Disciplinary Officer, she claims that when she became aware of the alleged incident she decided “to do nothing”  and then was asked by the Operations and Finance Manager on 20 January 2020 about it – “I felt I would not have brought this to [the Operations and Finance Manager’s] attention only that I was questioned about it”.

Investigation Procedure

The Complainant’s suspension was followed by an internal investigation.  The investigation meeting, which was scheduled to take place in the lobby of a local hotel, was variously described as “purely a fact-finding mission”, “a beginning of the process” and as an attempt to keep the matter “in house” and “to see what’s behind this”. The Complainant contends that these descriptions suggest a lack of understanding of the seriousness of a suspension for the Complainant, given the potential, irreparable damage to her reputation. A meeting to “discuss the possibility” was hardly appropriate in light of the fact that the Respondent had already decided that the Complainant should be suspended.  In the letter, the Complainant was informed that she could be accompanied by a colleague, even though, unknown to the Complainant, all her work colleagues were by then compromised in the case against her.  The internal investigation was discontinued without reporting after the Complainant raised a number of objections.

This was followed by two external investigations. The first external investigation (5-25 March 2020) was also discontinued without reporting. The second investigation commenced on 25 March 2020 and concluded with a written report on 18 May 2020.

The Complainant contends that the Investigator’s report failed to address or clarify the following:

• The possible existence of a statement by the Membership and Digital Communications Officer which was not included in the report.  The Complainant asserts that the statement was withheld until 6 July 2020.
• The possibility that meetings between the Membership and Digital Communications Officer and the Operations and Finance Manager took place in the days prior to 20 January 2020. The Complainant asserts that two meetings took place; the first on 17 January 2020 which was only made known on 16 June 2020 and the second on the morning of 20  January 2020 which was only made known on 27 August 2021.
• The Complainant’s assertion that the Membership and Digital Communications Officer could not have seen the Complainant moving the mouse had she done so because of the layout of the office.

·       That the date stamp in a communication between the Operations and Finance Manager and the Investigator was manually altered.

The Complainant contends that these concerns were brought to the Investigator’s attention prior to him finalising his report but were not addressed.

The Complainant submits that there is no evidence to support the Operations and Finance Manager’s contention that the statement was submitted to the Investigator. Given that the Investigator’s report references several instances where the Complainant had queried if the Membership and Digital Communications Officer had made a statement, the Complainant is surprised that the Operations and Finance Manager did not clarify that she had made the statement available to the Investigator.

Furthermore, in an email sent to the Investigator on Thursday April 24 April 2020, in response to a query from him, the Operations and Finance Manager made an unsolicited reference to an exchange she had with the Membership and Digital Communications Officer and stated: 

“[the Membership and Digital Communications Officer] told me that [the Complainant] read aloud a personal message between myself and [the Head of Communications and Public Affairs] which I sent to him on 8 January.”

After seeing this exchange between the Investigator and the Operations and Finance Manager, the Complainant wrote to the Investigator pointing out that “either she, [the Membership and Digital Communications Officer] provided a statement or evidence leading to [the Complainant’s] suspension and the investigation, or she didn’t”. 

The Complainant contends that on the basis of her submission to him, the Investigator had substantial grounds for making direct enquiries of the Operations and Finance Manager on the matter. The Complainant submits that there is no evidence that he did so. 

Additionally, the Complainant contends that the email exchange referred to above was incorrectly dated.  The Complainant asserts that  24 April 2020 was a Friday and not a Thursday and that it is virtually impossible for such an error to occur within an IT system.  The Complainant maintains that the day of the week could only have been altered and that, even if it was inadvertent, the Respondent should have explained the reason for it.

Disciplinary Procedure

On 21 May 2020, the matter was assigned to an external Disciplinary Officer who decided on 17 July  2020 that the Complainant should be dismissed.

As with the Investigator, the Disciplinary Officer failed to identify and locate the 20 January 2020 statement from the Membership and Digital Communications Officer until it was discovered eventually by the Complainant in her cross-examination of the Operations and Finance Manager. The Complainant contends that the Disciplinary Officer also failed to identify a meeting between the Membership and Digital Communications Officer and the Operations and Finance Manager which was  held on the morning of 20 January 2020.  

-          The Complainant further contends that the Disciplinary Officer failed to gather evidence on the layout of the office and that he provided no explanation for his conflation of “interact” and “Interfere” in his findings

In her various submissions to the Disciplinary Officer, the Complainant detailed her concerns about the flaws in the Investigator’s report.  The Complainant contends that the Disciplinary Officer took no action to address the Complainant’s concerns.  In particular, having been made aware of the Complainant’s concerns, he failed in his interviews with the Operations and Finance Manager and with the Membership and Digital Communications Officer to identify that the Membership and Digital Communications Officer, who was not subsequently available for cross-examination by the Complainant, had made a statement on 20 January 2020.

In her final submission to the Disciplinary Officer dated 13 July 2020, the Complainant stated that “questions arise in relation to the viability and continuation of the disciplinary process, particularly taking into account that the process, as per [the Respondent’s] Employee Handbook is premised on acting on the Investigation report’s findings. As there has been no alternative investigation, the [the Investigator’s] report must now, as previously suggested, be considered fatally flawed, and lacks the integrity to provide focus and direction to the disciplinary process. My suspension should be lifted”.

The Complainant contends that, although he was fully aware of the contradiction in the Membership and Digital Communications Officer’s two statements, and that her original statement was withheld, the Disciplinary Officer nonetheless proceeded to uphold the allegation about interference. In doing so, he deviated from the facts and testimony, to offer an obscure interpretation of the meaning of “interfering” by stating that the Complainant “did interact with a colleague’s PC and in effect interfered with that PC on more than one occasion”.  The Complainant submits that his was the only use of the word “interact” in the whole process and it was used without explanation or definition.

The Disciplinary Officer further asserted that this interact-interfere conflation is evidenced by the Complainant’s own statement(s) but does not specifically quote from or reference those parts of the statement to back this up.  The Complainant asserts that nowhere in her statements did she use the term “interact” and her use of “interfere” was used for the sole purpose of rejecting the allegation.

The Complainant contends that given his failure to enquire into the office layout, his ambiguous conflation of two separate concepts—interact and interfere— and his failure to specifically reference his claims that by her own statement the Complainant had interfered with the PC, the Disciplinary Officer’s conclusions on the matter of interference are seriously misplaced and erroneous.

In his conclusions on the second allegation, which he also upholds, the Disciplinary Officer states that the Membership and Digital Communications Officer “was able to relay certain information regarding a WhatsApp Group that would not have been possible were the message not brought to her attention”. In this regard, the Complainant asserts that this conclusion relies on the conversation between the Operations and Finance Manager and the Membership and Digital Communications Officer as set out in the Operations and Finance Manager’s email of 24 April 2020.

The Operations and Finance Manager’s intervention, while only referenced by the Investigator, is clearly taken fully on board by the Disciplinary Officer, in that he accepts that, based on the Operations and Finance Manager’s email intervention that she had sent a message containing “certain information” that was subsequently shared, and that such sharing could only be as a result of the Complainant reading that information.

The Complainant submits that by accepting the Operations and Finance Manager’s statement of 24 April 2020, the Disciplinary Officer had treated the Operations and Finance Manager as a witness in the case.  The Complainant asserts that the Operations and Finance Manager should not be a witness to an investigation and disciplinary process that she herself initiated and managed.

On the basis that the only witness to the alleged interference with a PC, the Membership and Digital Communications Officer, made two substantially different statements (one written, the other recorded in interview) about the alleged interference with a PC, that the written statement was itself inherently contradictory, and that this same witness was also not subsequently available to be questioned by the Complainant, there were substantial grounds for disregarding her evidence completely and for concluding that there was no “interference” with the PC and thus, with regard this allegation, there was no gross misconduct. 

Appeals Procedure

The Complainant was dismissed by the CEO on 6 October 2020.  The Complainant appealed her dismissal to an external Appeals Officer.

The external Appeals Officer concluded on 28 October 2020 that ‘there was no suggestion or evidence that [the Complainant] logged into another person’s IT account or opened applications, or that she actively searched any account or application to solicit information from it”. 

The external Appeals Officer did not find that the Complainant’s actions were “so serious and substantial as to justify the termination of her employment.  The external Appeals Officer found that “the decision to terminate [the Complainant’s] employment was a disproportionate response to a matter of misconduct”.

The Complainant notes that the Appeals Officer was the only external HR professional involved in her case who sought information on the office layout.

By letter dated 3 November 2020, the CEO informed the Complainant that the Respondent had decided not to accept the decision of the Appeals Officer and, therefore, that the decision of the Disciplinary Officer still stood.  The CEO emailed the Complainant on 5 November 2020 confirming her dismissal. 

In her email to the Complainant dated 5 November 2020, the CEO in referring to the Appeals Officer’s decision “that the original decision to terminate was disproportionate to the matter of misconduct” contended that the Appeals Officer “failed to understand the reasoning for the decision taken by [the Disciplinary Officer] namely that the decision to dismiss was based on not only the conduct, but the breach of trust that is integral to the relationship of an employer employee relationship”.

The Complainant notes that in November 2020 the Respondent rejected the Appeals Officer’s decision for reasons related to breach of trust, whereas in its August 2021 submission to the WRC, the Respondent submitted that the Appeals Officer was “favourably” influenced by the Complainant.  The Complainant contends that the Respondent could have appointed a new Appeals Officer but did not do so. The Complainant asserts that, in rejecting the external Appeals Officer’s decision, the Respondent completely undermined its disciplinary process. 

The Complainant maintains that she was not instructed not to contact the Appeals Officer, which she did immediately after her being informed how to do so by the Disciplinary Officer. The Complainant further asserts that it was the Appeals Officer, not the Respondent, who informed the Complainant that the appeal needed to be paused by email dated 13 August 2020 in which she wrote:

“I have notifiedActive Retirement Ireland that I would intend concluding your Appeal this week and I am advised that the matter of your dismissal is still under consideration pending the conclusion of your grievance - as per the email sent to you by [the CEO] on 20th July.         

 With this in mind it would be premature to make a decision in relation to a matter that has yet to be finalised and as such I will not now at this time be issuing a decision in respect of your Appeal. In effect your Appeal is on hold pending conclusion of the grievance process; the outcome of which may inform the decision of ARI in respect of any disciplinary sanction.”

Summary of the direct evidence of the Complainant

The Complainant confirmed that she was suspended on full pay with immediate effect on the morning of 21 January 2020 when she was called in to the CEO’s office to meet with the CEO and the Operations and Finance Manager.  The Complainant said that the Operations and Finance Manager asked her for her key and fob.  The Complainant said that she was completely taken by surprise and never saw it coming.

The Complainant said that she left the office wondering what she had done.  She thought that her suspension might have something to do with the complaint she had raised about her colleague, the Head of Communications and Public Affairs, in October 2019.  When she got home, she decided to email the CEO to ask why she had been suspended.

The Complainant asserted that the first incident occurred on 13 January 2020 and that both the Membership and Digital Communications Officer and the Fundraising Manager were in the office.  She said that she passed by the Head of Communications and Public Affairs’ PC on her way to the tea station and saw that one screen on the PC was open and that WhatsApp was on the screen.  She noticed a Dad’s WhatsApp group, a message from the Operations and Finance Manager and a message from someone named [named woman] who she presumed was her colleague’s wife.

The Complainant said that when she mentioned what she had seen to the Fundraising Manager, she put up her hand and said that she did not want to hear about it.

The Complainant is adamant that she did not touch the mouse or any other peripheral and she is absolutely sure that the screen was open.  The Complainant asserted that she did not read any WhatsApp messages – she only saw who they were from. 

At the hearing, the Complainant was shown a copy of the WhatsApp message from the Operations and Finance Manager to the Head of Communications and Public Affairs which she is alleged to have read.  The Complainant confirmed that she had never seen the message before the hearing.

The Complainant stated that she was first in the office the next morning.  When she was over at the tea station she saw a light on the Head of Communications and Public Affairs’ PC. She touched the keyboard and the home screen was displayed.  She mentioned to her colleagues (the Fundraising Manager and the Membership and Digital Communications Officer) that she had touched the Head of Communications and Public Affairs’ PC. The Complainant said that she became agitated because her colleague would have known that she had touched his PC. 

The Complainant said that she did not expect to be dismissed by the Respondent and she felt that she had a good relationship with the CEO.

In response to a question from the Respondent’s representative, the Complainant acknowledged that what she did was not appropriate.  She said that she was being nosey but that the screen was open.  She asserts that her actions may have been a minor breach of conduct but were not gross misconduct.

Mitigation of Loss

The Complainant said that she had difficulty securing alternative employment as she was dismissed at the commencement of the second lockdown and employers were not recruiting for similar jobs to hers.  Her difficulty was compounded due to her personal circumstances, she was unable to work from home.  In addition, she did not receive a reference from the Respondent.

The Complainant had started a new job working two days per week in March 2021.  She provided payslips to show that from March 2021 until September 2021 she had earned €4,514.24.  When she worked for the Respondent, she was on an annual salary of €32,000.

Conclusion

The Complainant contends that there  were serious conflicts of interest in the handling of the allegations of misconduct, the reliability of the witnesses, the withholding of information.  She asserts that the investigation and disciplinary processes were tainted.  The Complainant further contends that there was a serious breach of trust in the employee/employer relationship, but that breach was caused by the employer.

Legislation

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

 “(4) 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) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. “

The application of the law in relation to the dismissal of an employee is relatively straightforward.  The burden of proof to show that a dismissal was not unfair rests with the employer who is, after all, terminating a contract of employment. The Unfair Dismissals Act requires that the employer must be able to show that fair procedures were followed and that there existed substantial grounds justifying the decision to dismiss.

Before I investigate the procedural framework which was adopted in this case, I must express my concern about the conflict of interest on the part of the CEO in the disciplinary process.  The Complainant had previously complained about the conduct of her colleague, the Head of Communications and Public Affairs, who is closely related to the CEO and the CEO was fully aware of this complaint.  Despite this, it was the CEO who suspended, and ultimately dismissed, the Complainant arising out of her alleged gross misconduct in allegedly accessing the PC of the same close relation.

I am also concerned about the conflict of interest on the part of the Operations and Finance Manager whose WhatsApp message to the Head of Communications and Public Affairs was allegedly accessed by the Complainant.  From the evidence adduced, it is clear that the Operations and Finance Manager was centrally involved in all aspects of the resulting disciplinary procedure.  In his terms of reference, the Investigator named the Operations and Finance Manager as the manager who initiated the investigation and indicated that the written report arising from his investigation would be submitted to the Operations and Finance Manager. In my view, it is not appropriate that an individual who was involved in an incident which resulted in a finding of gross misconduct would also be involved in the investigation of that incident.  

Procedural Framework

The first matter I must decide is if the procedural framework adopted by the Respondent is this case was in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·       That employee grievances are fairly examined and processed;

·       That details of any allegations or complaints are put to the employee concerned;

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

My role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be expected in such cases considering the bar on what constitutes gross misconduct justifying dismissal is a very high one.

I note that there was some confusion about the dates on which the alleged incidents which led to the Complainant’s suspension and ultimate dismissal actually occurred but since there was consensus that the events did actually occur, albeit that the nature of those events is disputed, I am of the view that nothing turns on establishing the exact dates on which the disputed events occurred.

In the written evidence adduced by the Respondent, the Respondent asserted that the Complainant’s alleged misconduct was brought to its attention by two members of staff, the Membership and Digital Communications Officer and the Fundraising Manager. 

However, in her interview with the Investigator on 3 April 2020, the Fundraising Manager stated that she “called [the Operations and Finance Manager] into [the CEO’s] office to have a discussion about another issue, HR issue that I was having at that time.  And this then came up in conversation that [the Operations and Finance Manager] had been made known about it and that apparently I had witnessed this incident on the Thursday.  And once she brought that up, I was kind of relieved and said ‘Okay, well this is what happened’.  And then she asked me then would I be comfortable with putting something in writing, a statement around it, for [the CEO].  And that’s what I did then.”

In response to a question from the Investigator, the Fundraising Manager clarified that she was asked to prepare a statement for the CEO “because [the Operations and Finance Manager] felt it was a quite serious HR issue and wanted to escalate it at that stage”.

Additionally, in the transcript of the Fundraising Manager’s cross-examination by the Complainant and the Complainant’s representative on 6 July 2020 as part of the disciplinary stage, the Fundraising Manager said “I didn’t want to get [the Complainant] into trouble.  Was leaving things at that.  Decided to do nothing and then was asked by [the Operations and Finance Manager] on the 20th Jan about it.  (I felt that I would not have brought this to [the Operations and Finance Manager’s] attention only that I was questioned about it).”

The Fundraising Manager’s evidence is corroborated by the notes of the meeting between the Appeals Officer and the Operations and Finance Manager which were adduced in evidence by the Respondent.  In the notes, the Operations and Finance Manager is reported to have clarified that, during her 20 January 2020 meeting with the Fundraising Manager, she told the Fundraising Manager that she had been made aware of the incidents and asked if the Fundraising Manager would be willing, if needed, to come forward.

I find, therefore, that contrary to the Respondent’s evidence, the Complainant’s alleged misconduct was only raised by the Membership and Digital Communications Officer and that the Fundraising Manager was actively solicited by the Operations and Finance Manager to make a complaint against the Complainant.  I am disturbed by this and my disquiet is compounded by the contents of an email from the Operations and Finance Manager to the CEO dated 20 January 2020 which was adduced in evidence by the Respondent. In that email, the Operations and Finance Manager outlined a list of complaints which had been made against the Complainant by her colleagues, the Membership and Digital Communications Officer and the Fundraising Manager.  It really is an extraordinary list which seems to represent an effort on the part of the Respondent to gather as much evidence against the Complainant as possible.  At the hearing, the Operations and Finance Manager confirmed that only the alleged viewing of a colleague’s PC was escalated to a disciplinary issue.

In her interview with the Investigator on 3 April 2020, the Fundraising Manager was asked if she had witnessed anything in relation to the Complainant’s alleged interference with the Head of Communications and Public Affairs’ PC on the first day.  She responded that “Well I wasn’t there on Wednesday 8th January, so I basically wouldn’t have known the incident took place……So it was really only Thursday 9th January was I was in … back in the office, I was having a discussion with my colleague, [the Membership and Digital Communications Officer], at her desk and this was when it was brought to my attention by [the Complainant].”

I find, accordingly, that the evidence of the Fundraising Manager in relation to the alleged misconduct of the Complainant on the first day was, by her own admission, hearsay.  This suggests that the only direct evidence available to the CEO when she decided to instigate a disciplinary process against the Complainant was the evidence of the Membership and Digital Communications Officer.  From the totality of the evidence adduced, both in writing and orally, it is clear that the relationship between the Complainant and the Membership and Digital Communications Officer was not amicable and that this was known to the CEO.  Yet the CEO relied on the evidence of the Membership and Digital Communications Officer to underpin the disciplinary action against the Complainant.

Before I investigate each element of the disciplinary procedures which were applied in this case, there are a number of issues of concern which I wish to highlight which apply to the entire process.

The issue of trust and confidence was a key element in the Respondent’s case yet no evidence was adduced to explain what exactly was meant by this term and how the Respondent reached he conclusion that it had been breached by the Complainant.

Additionally, no IT audit was carried out to see exactly what type of information was accessed by the Complainant.  There appears to be consensus that the Complainant viewed WhatsApp messages on her colleague’s PC, although there is not agreement as to how much of each message was viewed.  At the adjudication hearing, both the CEO and Complainant were shown the WhatsApp message from the Operations and Finance Manager to the Head of Communications and Public Affairs and both confirmed that that was their first time viewing it.  Copies of the other WhatsApp message were not adduced in evidence.  These WhatsApp messages appear to have formed the core of the Respondent’s case against the Complainant, yet no evidence was adduced to show that they had been examined in the course of the disciplinary process. 

Furthermore, unlike the Appeals Officer, neither the Investigator nor the Disciplinary Officer sought information on the layout of the Respondent’s office despite the fact that the Complainant contended that the Membership and Digital Communications Officer did not have full sight of the Head of Communications and Public Affairs’ PC from her desk and, therefore, could not see if the Complainant touched his PC.

Suspension

In Bank of Ireland v Reilly [20145] IEHC 241, Noonan J found that -

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he was then) in Morgan v Trinity College Dublin [2003] 3 IR 157 there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.”

Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters.”

The Respondent confirmed at the hearing that it did not have any documentation relating to the decision to suspend the Complainant.  No evidence was adduced to explain how it had reached the conclusion that the Complainant was guilty of gross misconduct rather than the lesser charge of misconduct.  Nor did the Respondent explain how the suspension of the Complainant was necessary to prevent a recurrence of the alleged gross misconduct, or to prevent interference with evidence or colleagues or to prevent reputational damage to the Respondent organisation. 

In an email to the Investigator dated 16 April 2020 (which was adduced in evidence by the Respondent), the Complainant wrote about her suspension in the following manner:

“On January 21st, as you know I was suspended for alleged gross misconduct.  This suspension came without warning.  There was no previous discussion. Neither my work colleagues nor management previously raised any issues with me in relation to the alleged incidents.  I was completely distressed by the suspension, especially in the manner in which I was brought into the CEO’s office to be told by the CEO I was suspended.  I was then accompanied back to my desk by [the Operations and Finance Manager] to collect my personal things, to hand over my key and fob, and then escorted down the corridor to the exit.  It was a degrading experience, among the worst ever in my life. I felt like I had been made ‘walk the plank’.”

Elsewhere in the same email, the Complainant wrote that “… nobody came to me since the incident to share any of their concerns.  I could not understand how the incident had been escalated to such a serious level without some discussion, without some attempt to question me, and without some warning.  To be honest, I began to feel I was being set-up, and again I felt it might have something to do with the complaint I had submitted”.

The Complainant’s account of her suspension was corroborated by the Disciplinary Officer’s notes of the meeting he had with the Operations and Finance Manager on 10 June 2020 where he wrote that “On the 21 January [the Operations and Finance Manager] arrived in for work and had a brief discussion with [the CEO].  She then went to [the Complainant] and asked her to join them in [the CEO’s] office.  [The CEO] set out to [the Complainant] that she was being suspended on full pay.  [The Operations and Finance Manager] then went with [the Complainant] to her desk where she asked her to give over her fob and keys.  [The Operations and Finance Manager] then walked her out of the office.  During this [the Complainant] asked [the Operations and Finance Manager] what this is about.  [The Operations and Finance Manager] stated that she was asked not to discuss but would be in contact very shortly.”

Again, I refer to Noonan J’s judgment in Bank of Ireland v Reilly [20145] IEHC 241 where he commented that “Whilst of course it must be correct to say that the full panoply of fair procedures may not have been engaged at that stage, I cannot accept that basic fairness did not require at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response.”

It is a central tenet of the disciplinary process, as set out in SI 146 of 2000, that an employee must be given the right to put their side of the story.  Clearly, this did not happen in this case.  The CEO did not conduct even the most rudimentary inquiry before making the decision to suspend the Complainant.  The CEO confirmed at the adjudication hearing that she that the first time she saw the WhatsApp message between the Operations and Finance Manager and the Head of Communications and Public Affairs was at the adjudication hearing.  She also confirmed that she had not asked the Complainant for her side of the story nor had she explained to her the reason for her suspension.

It is truly extraordinary that no explanation for her suspension was afforded to the Complainant and that she was allowed to leave her place of employment without any idea as to why she was being suspended.  The manner in which the Complainant’s suspension was carried out completely ignored her right to fair procedures and natural justice and seemed to have been designed to humiliate, punish and upset the Complainant to the maximum extent possible.  It seems like a particularly cruel and harsh approach to human resource management.

The wrong to the Complainant was compounded when the Complainant emailed the CEO on the day of her suspension to seek a reason for her suspension and no response was forthcoming from the CEO.  The only conclusion I can come to, is that the suspension of the Complainant was opportunistic, punitive and effected without due rigour.

Investigation

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations as follows:

“It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

In an email dated 24 April 2020 to the Investigator, the Membership and Digital Communications Officer mentioned that the Complainant had “read part of [named woman’s] message out but then said that she couldn’t see the rest of it”.  Elsewhere in the same email, the Membership and Digital Communications Officer wrote that the Complainant had “read the first few words of what [the Operations and Finance Manager] had written”.

In her interview with the Investigator, the Membership and Digital Communications Officer referred to the applications that the Head of Communications and Public Affairs had open on his screen.  She clarified that the messages to which she was referring were WhatsApp messages. In reply to a question from the Investigator as to whether or not the Complainant was reading the WhatsApp messages, the Membership and Digital Communications Officer replied “.. I’m not sure if she was going into them or just seeing sort of the top of them but she was still reading the app itself”.

It is noteworthy that the Membership and Digital Communications Officer’s claim of 20 January 2020 that the screen were activated were not repeated in either of her subsequent interviews with the Investigator or the Disciplinary Officer.  However, because the Membership and Digital Communications Officer’s statement of 20 January 2020 was withheld from the Investigator, the contradiction in her statements between “open” and “activated” did not become apparent until 6 July 2020 when her statement of 20 January 2020 was made available.

Disciplinary

The report the Disciplinary Officer is very brief report considering the seriousness of the subject matter and the fact that the Disciplinary Officer reached a conclusion that the Complainant was guilty of gross misconduct and should be dismissed.

In his report, the Disciplinary Officer failed to differentiate between ‘interact’ and ‘interfere’.  He also failed to clarify whether the Complainant read the entire WhatsApp messages on her colleague’s PC or just the message headings. At the disciplinary stage there was no cross-examination of the Membership and Digital Communications Officer even though she had made the initial statement which led to disciplinary action against the Complainant.

The most egregious aspect of the Disciplinary Officer’s decision, however, was that he did not appear to have considered any alternative to dismissal even though such alternatives are provided for in the Respondent’s Grievance and Disciplinary Procedure.  In his concluding remarks the Disciplinary Officer wrote that, “In reviewing this matter consideration must be given to [the Complainant’s] employment with [the Respondent organisation].  Her employment record is clear and nothing relating to a disciplinary nature exists regarding her employment from January 2016 until this matter arose.  He went on to say, “I am further mindful this process has extended for a very significant period from 21 January to date.  In reviewing the levels of sanction that would be appropriate I have taken those points in to consideration”.  Yet, in his next sentence he wrote, “It is my decision that [the Complainant] should be dismissed from employment with one month’s notice”. I am at loss to understand how the Disciplinary Officer pivoted from his consideration of the mitigating factors in this case to recommending dismissalwithout providing any reason for his conclusion.

Appeal

Unlike the Investigator and the Disciplinary Officer, the Appeals Officer considered (by way of photographs) the physical layout of the Respondent’s office area, the visibility of screens at workstations and familiarised herself with how WhatsApp appears on a PC screen.  According to her report, the Appeals Officer also, “considered the duty of trust and confidence that are inherent in the employment relationship”.

In her report the Appeals Officer noted that no previous disciplinary issues had arisen during the course of the Complainant’s employment with the Respondent.  She also noted that there was no suggestion or evidence that the Complainant logged into another person’s IT account or opened applications, or that she had actively searched any account or application to solicit information from it.

The Appeals Officer found that the Complainant’s actions were, by her own admission, inappropriate and she found that they fell well short of that which an employer could reasonably expect.  She also found that whilst the Complainant’s actions were clearly unwise, discourteous and unnecessary, they were not tantamount to gross misconduct and that they fell within the scope of misconduct.  The Appeals Officer further found that there must be a substantial reason to underpin reliance on a breakdown of trust in the employment relationship as a reason for dismissal.  She did not find that the Complainant’s actions were so serious and substantial as to justify the termination of her contract.

The Appeals Officer found that an alternative disciplinary sanction would have been a more appropriate and proportionate response.  Accordingly, she found that, in line with the Respondent’s Grievance and Disciplinary Procedure, the Complainant was to be issued with a formal written warning for misconduct and that this warning would remain on her record for a minimum of 18 months from the date of the misconduct.  The Appeals Officer further found that the Complainant must be made aware that any further causes for concern regarding any aspect of her conduct and actions in work may result in further disciplinary action, up to and including dismissal.  The Appeals Officer recommended that the Complainant should also receive further instruction or training in respect of the standards that are expected of her in the workplace in relation to IT protocols and office etiquette.

I am of  the view that the Appeals Officer’s findings were reasonable and proportionate.  In reaching this conclusion, I have evaluated the evidence adduced at the hearing and have taken full account of the written submissions made by the parties.

The Respondent rejected the decision of the Appeal’s Officer and indicated to the Complainant that the decision to dismiss her still stood.  During the course of her cross-examination at the adjudication hearing, the CEO was asked by the Adjudication Officer why she had rejected the findings of the Appeals Officer.  In response, the CEO said that she had a problem with the methodology adopted by the Appeals Officer and she felt that the Appeals Officer had not dealt with the breach of trust issue.  I am of the view that, If the CEO had concerns about the integrity of the process, these concerns should have been dealt with prior to the conclusion of the process. 

Having regard to all of the evidence and submissions, I find that the dismissal of the Complainant was, for the reasons set out above, procedurally unfair. The degree to which the Complainant was deprived of her right to fair procedures and natural justice is such as to render the dismissal procedurally unfair with the meaning of the Act.

Substantive matters

I must also decide if the decision to dismiss was a reasonable and proportionate response to the Complainant’s conduct. 

I note that the Complainant admitted to what she had done and agreed that it was wrong.  Even after examining all the evidence that has been adduced, I am still not clear how the CEO came to the conclusion that the Complainant’s conduct amounted to gross misconduct rather than misconduct.  No evidence was submitted that an IT audit was undertaken or that the meaning of the term “breach of trust” had been explored.  Surely if the information on the Head of Communications and Public Affairs’ PC was so sensitive, the PC should not have been left on and the Head of Communications and Public Affairs should have been disciplined for doing so.  This did not happen.

No evidence was adduced that the Respondent considered any alternatives to the dismissal.  In fact, the Respondent’s rejection of the outcome of the appeals process suggests that the CEO had decided, at the outset of the process, that the Complainant would be dismissed and that no other possible outcome would be considered.

In Bunyan v United Dominions Trust, the EAT endorsed the following view:  “the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved”

Having considered the submissions of both parties and all of the evidence adduced at the adjudication hearing, I find that the Respondent acted extremely harshly in applying the ultimate sanction of dismissal and, therefore, did not act as a reasonable employer would have in such circumstances.

Redress 

Section of the Unfair Dismissals Act 1977 – 2015 stipulates that where a complaint succeeds, redress may be awarded up to a maximum of 104 weeks’ remuneration, based on the financial loss suffered following the termination of employment. 

“ (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: …

… (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances.”

In calculating the level of compensation I took into consideration the efforts of the Complainant to mitigate her losses.  The Complainant submitted evidence that she had only applied for five jobs since her dismissal from the Respondent organisation. I find that her efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

In conclusion, and having regard to all of the circumstances of the complaint, I find that the dismissal of the Complainant was substantively and procedurally unfair and the sanction of dismissal was disproportionate. It is my considered opinion that the Respondent showed no regard to the principles of fair procedures and natural justice.

I find, however, that the Complainant has not made sufficient effort to mitigate her loss. Taking all factors into account, I direct the Respondent to pay the Complainant redress of €30,000.

The Respondent submits as follows:

Preliminary Issue 1:

The Complainant has taken claims under both the Unfair Dismissals Act 1977 and the Employment Equality Acts 1998 – 2015.  In both claims the Complainant has essentially made the same allegation regarding a disciplinary process she alleges to be unfair, flawed and a result of making a complaint against a male colleague in October of 2019, both of which are wholly refuted.  The Respondent submits that the Complainant is seeking to vex the same claims under multiple pieces of legislation, in breach of the well-established doctrine of res judicata. In this regard, the Respondent would refer to the well settled precedent set out in Henderson v Henderson (1842) 3 Hare 100. 

In respect of the claim under the Employment Equality Acts, the Respondent submits that the Complainant has alleged that she was discriminated against by being asked to participate in an allegedly unfair and discriminatory investigation process. The Complainant believes the Respondent treated her differently and discriminated against her because she was female.  The Complainant alleges that the procedures she was subject to were in contrast with those the male comparator was subject to. 

Similarly, in her complaint under the Unfair Dismissals Act, the Complainant is alleging that she was subject to an unfair suspension, investigation and disciplinary process which was procedurally flawed and that her conduct did not warrant dismissal.

The Respondent submits that the Complainant is precluded for pursuing both claims by virtue of section 101 (4A) of the Employment Equality Acts and S.I. No. 126/2016 - Employment Equality Act 1998 (Withdrawal of Certain Claims) (Relevant Date) Regulations 2016.  

Preliminary Issue 2: 

The Respondent submits that the Complainant has not named a suitable comparator under the provisions of the Employment Equality Acts 1998 – 2015.  The Respondent argues that the Complainant and her named comparator: do not perform the same work under the same or similar conditions; are not interchangeable with one another; do not perform work that is of a similar nature to that performed by the other; and, do not perform work that is of equal value to that performed by the other.  

Furthermore, the Respondent submits that the incidents in question are not of a similar nature and were treated specifically in line with the sanctions set out in the Respondent’s handbook.

The Complainant submits as follows:

Preliminary Issue 1:

The Complainant is pursing her right to complain about two separate matters, which occurred on two separate occasions.  It should be noted that the Complainant submitted her Employment Equality complaint when she was still employed by the Respondent and was relatively hopeful that she could win an appeal against her dismissal. 

Preliminary Issue 2:

The Complainant submits that the relevant section of the Employment Equality Act for comparative purposes is section 8(6)(c).  As both the Complainant and the comparator are subject to the same Employee Handbook, the Complainant contends that they are the same class of employee for the purpose of grievance and disciplinary procedures. 

Preliminary Issue 1:

Contrary to the Respondent’s assertions, I am of the view that the Complainant’s complaints under the Unfair Dismissals Act 1977 and the Employment Equality Act 1998 – 2015 are sufficiently distinguishable as to negate the applicability of Henderson v Henderson to the herein case.

Section 101(4A) of the Employment Equality Act 1998 provides that a person who has referred a complaint relating to dismissal under both the Unfair Dismissals Act 1977 and the Employment Equality Acts 1998 – 2015 to the Director General of the Workplace Relations Commission has to elect between one or the other by a prescribed date. If the person fails to elect by this date the discriminatory dismissal complaint will be deemed to have been withdrawn.  In light of the fact that the Complainant did not submit a complaint of discriminatory dismissal under the Employment Equality Acts 1998 – 2015, I find that the Respondent’s reliance on the provisions of section 101(4A) is misplaced.

Preliminary Issue 2:

The Respondent appears to be relying on section 7 of the Employment Equality Act 1998 to support its contention that the Complainant has not named a suitable comparator.  Section 7 section defines “like work” for the purposes of equal pay.  Since the Complainant has not submitted an equal pay claim, I find that the Respondent’s reliance of the provisions of section 7 is misplaced.  I agree with the Complainant’s reliance on the provisions of section 8(6)(c) for the purpose of identifying an appropriate comparator.

The Complainant submits as follows:

On 22 October 2019, the Complainant raised an issue of potential gross misconduct against one of her colleagues during the course of her support meeting with her Line Manager.  This colleague, who is male, is closely related to the CEO.

Following the Respondent’s initial, internal assessment of the situation, and taking potential conflicts of interest into account, the allegation was referred to the Respondent’s professional HR advisor.  Some weeks later the Complainant was informed, after she made an informal enquiry to her Line Manager, that the matter had been “actioned”.  The Complainant was not happy about this as she felt that she should have been informed in writing. 

On 22 January 2020, the Complainant was suspended without explanation or notice when allegations of gross misconduct were made against her. 

The Complainant contends that the comparator was treated differently because he was not suspended when an allegation of gross misconduct was made against him, whereas she was.  The Complainant alleges that the comparator was treated more favourably because of his gender.

The Respondent submits as follows:

The Complainant alleges that she was involved in a different discriminatory investigation process than her comparator. The Respondent submits that the comparator was disciplined for a matter that was considered misconduct.  The incident in question related to an “abuse of sick leave policy” a breach that is covered under misconduct.  The Complainant’s behaviour, however, related to alleged “serious breaches of confidentiality” and was considered to be gross misconduct. 

The Respondent submits that the Complainant was involved in an investigation and disciplinary procedure in line with alleged behaviour that constituted gross misconduct and that any difference between the disciplinary procedures applied to the Complainant and the comparator were solely related to their behaviour and had no relevance to their gender. 

This is a complaint made pursuant to the Employment Equality Acts. The issue for consideration in this case is whether the Complainant was discriminated against by reason of her gender. 

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”.

Section 6(2)(a) of the Acts defines the discriminatory ground where one is a woman and the other is a man (in this Act referred to as “the gender ground”).

Burden of Proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

In the case of Melbury Developments and Valpeters (EDA 917) the Labour Court stated as follows:  "Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

The Labour Court in the case of Southern Health Board v. Dr Teresa Mitchell (DEE 011) considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of gender can be made out. The Labour Court stated that the Complainant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

As was noted in Margetts v Graham Anthony Ltd, EDA038:  “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.  In order to determine whether the Complainant has established a prima facie case a three tier test is employed.

·       First, the Complainant must establish that she is covered by the relevant discriminatory ground.

·       Second, the Complainant must establish that the specific treatment alleged has on balance occurred.

·       Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

I accept that the Complainant is covered by the gender ground.  I also accept that she was treated differently to her colleague when she was suspended from her employment in the course of a disciplinary process, whereas he was not.

However, based on the totality of the evidence adduced in relation to the herein complaint and the complaint under the Unfair Dismissals Act, I believe that the difference in treatment afforded to the Complainant and the comparator was due to the fact that the comparator was a close relation of the CEO and the Complainant was not.

On balance, and after much deliberation, I find that the Complainant did not establish facts from which it may be presumed that she was treated by the Respondent less favourably than a man is, has been or would be. Accordingly, the Complainant did not establish a prima facie case of discrimination on the grounds of gender.

Having considered the evidence available to me, I find that the herein complaint is not well founded.

Unfair dismissal – suspension.  Employment Equality – gender ground