Complainant

Respondent

Parties

Stephen  O'Grady

Heraeus Metal Processing Ltd

Representatives

  Self Represented

Aoife Hennessy Sweeney McGann Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038872-001

23/07/2020

The Complainant was alleging he was unfairly dismissed.

The Complainant made a written statement in his Complaint form as to the reasons for his unfair dismissal. The Complainant also submitted a substantial number of supporting documentation prior to the Hearing.

The Complainant believed he was dismissed “without good reason” and did not get an adequate description of why he was dismissed when he requested it.

Concerning the allegation of Bullying against Ms. A there was no real mention of it in the informal investigation, the formal investigation and the letter of termination.

The majority of the investigation conducted by the Respondent concerned an alleged allegation against Ms. A and the Complainant believed this to be unfair.

The Complainant did not believe to be fair to enter a disciplinary process for one reason and potentially dismissed for another reason.

The Complainant believed these alleged allegations led to his temporary suspension.

The Complainant believed that he was treated unfairly and penalised against the past investigation.

The Complainant objected to the investigation and found it unfair and potentially prejudicial to have a second complaint by Ms B investigated while he was already involved in a formal investigation with Ms. A. The Complainant supplied in his initial complaint form substantial correspondence to support his complaint of unfair dismissal.

The Respondent specialises in the manufacture of precious metals containing chemical compounds in particular Platinum, Palladium and Rhodium.  The Respondent employs 20 persons, in the following roles, Administration, Laboratory and Chemical Production including Shipping. The Company has a very small management team

The Complainant, who is 33 years of age, was employed in September 2016 as a Laboratory Technician.  His salary as of the date of dismissal was €31,212.00.

The Complainant alleges that he was unfairly dismissed from his role on the 31st March 2020. The Respondent denies this claim. The submission as lodged by the Complainant was very difficult to respond to or comprehend due to the manner in which it is set out. The Respondent set out the sequence of events that led to the Applicants dismissal and the very fair and independent process adopted by the Respondent pursuant to the Company Disciplinary procedure. It also set out the Complainants contribution to this very difficult situation and outcome.

The Complainant worked in the laboratory area.  This is a small area where the Complainant worked with and in close proximity to another Laboratory Technician Ms A and also where their Manager Mr C  worked in an adjacent room. There would be very little footfall in this area due to the nature of the analysis work being carried out. Only those qualified to carry out the Analysis need to be in the Laboratory. As the Lab area is small the procedure was that samples requiring analysis were logged in an area outside of the Laboratory & samples and results are returned to this area when the analytical work is completed.  

Ms A made a formal complaint of Bullying & Harassment, Sexual Harassment and inappropriate behaviour against the Complainant in June 2019. She has made a complaint previously in 2017 that was not upheld.

 The company engaged an independent HR Company to carry out a preliminary investigation in August 2019. This is in line with the company policy for such complaints in line with the Company handbook.

The investigation was conducted in late August to September 2019. The Applicant, Ms A and a number of their co-workers were also interviewed. The outcome was that there was: 

Sufficient grounds to warrant a disciplinary hearing into the actions and behaviours of

The Complainant based on the levels of verbal and non-verbal abuse suffered by Ms A. 

Concern for the wellbeing of the Complainant and his colleagues arising from the tendency to lose self-control and display high levels of anger.

On the 1st August 2019 Ms A advised that she was very unhappy with what she perceived as a delay by the company in dealing with her complaint. She advised that she had suffered great stress and was in fear. She was on leave for a number of weeks thereafter being a combination of both annual leave and sick leave. The Respondent arranged to have her reviewed by an Occupational Health Company. The Respondent also explained the challenge in sourcing an investigator in July/August. At this point the Complainant had now lodged a cross complaint as against Ms A alleging the complaints were spurious. 

Where Ms A alleged that she felt unsafe in the working environment, being the laboratory area which in the main was limited to both her and the Applicant, with a view to facilitating her return to work while the investigation was on going the company advised both Ms A and the Complainant that they were placing CCTV in the laboratory which was in both their interests. It was also set out that due to the specialist nature of their roles there was nowhere to redeploy either party. Both parties consented to this, the Complainant consented by email of the 12th August 2019. TAB 8. He also consented to the Investigation “I believe that the cameras is a good idea & going externally with the complaints adds an element of fairness & impartiality to the proceedings”.

The report of the Investigator was finalised on the 2nd of October 2019. In light of the findings the company took the decision to suspend the Complainant on pay pending a Disciplinary Investigation this was where Ms A continued to allege impact on her health. The Complainant by letter of the 7th October responded to the findings and took issue with same, he alleged the process was unfair, that he was not given the list of colleagues who would be interviewed in advance of the investigation and that there was no transcript of the interviews. He advised that he had taken legal advice as he felt at a disadvantage in dealing with the matter. 

On the 10th October 2019 the MD sought that the Complainant would come to her office, she had sent a meeting invite for 10.30a.m. The intention was to advise the Complainant of the decision to suspend on pay for the duration of the disciplinary process. The reason for the suspension was to prevent a repetition of the conduct complained of during the course of the Disciplinary Process and also where Ms A complained of ongoing fear and health issues due to anxiety. When the Complainant did not arrive, the MD walked down the building to find him, he was in the canteen. She asked him to come to her office when he was finished for a quick chat, he did not respond. He then sent an email saying he wanted more time before he attended any meeting. The Complainant then went to go back to the Laboratory and the MD who was in the general area saw him and again asked him to come to her office for quick chat. He again refused and became agitated. Mr B who had a good relationship with the Complainant asked him to come to the conference room. He again refused and went to the Laboratory. The MD and Mr. B  followed him and gently advised him that it was not appropriate for him to refuse to meet with her. He asked if it was about the outcome report, and if so, it was not fair, she advised that it was not directly, but it was related. He again refused and she was then left with no option but to hand him the letter of suspension. The MD advised him to read the contents, he then read it. The MD could see that he was taken aback and asked him to come to the conference room. He did come and Mr B also attended, they gave him tea. They offered for Mr B to drive him home.

 Thereafter the Complainant sent multiple emails setting out queries, these were replied to on the 14th October. There was a formal outcome meeting held on the 16th October 2019 where the Complainant attended with Mr B. Just prior to the company engaging an external investigator for the Disciplinary Investigation, Mr C,  the Complainants Manager also lodged a complaint as against the Complainant on the 23rd October 2019, these were in the main in relation to performance issues, insubordination and refusal to carry out duties, which behaviour has escalated over the previous months.

The Complainant was advised of the lodging of this complaint on the 29th October by email. The Complainant responded on the 30th October and expressed surprise and dismay and felt he was being victimised. He asked how it was proposed that this complaint would be dealt with.  The company engaged a different independent HR consultant by way of letter of referral to investigate the two complaints as against the Complainant. The Complainant accepted by email of the 1st November that both matters were to be investigated simultaneously and where he felt that his story had been disregarded, he would “welcome a platform to voice it”. However, the Complainant subsequently by email of the 7th November objected to the “conflation of these two complaints”, he advised that he was of the view that Mr C complaint should go through an initial investigation process as did Ms A’s in the first case and prior to any Disciplinary Investigation. The Complainant was advised by email/letter of the 8th November that the company was surprised that he was now objecting to the both complaints being investigated by the same investigator where he had previously agreed. He was advised that it was deemed reasonable and appropriate where there was a significant cross over in terms of evidence and witnesses. As the Complainant had now lodged a complaint as against Mr. C this was also to be investigated as part of the process.  The Complainant was advised that there was no requirement in respect of Mr C complaint to have a preliminary investigation as it did not fall under the bullying intervention policy.

On the 9th November 2019 the Complainant again objected to the appointed Independent HR Consultant  dealing with the complaint of Mr. C.  On the 13th November 2019 the company responded and advised again that they deemed it fair and appropriate for the Independent HR Consultant to investigate all matters where “the investigation centres around the inter-personal relationship as between you and a co-worker, where the co-worker has made allegations of bullying and harassment and thereafter your supervisor has made a complaint  as against you as to lack of respect and insubordination and where he alleges your behaviour has had a negative impact on staff morale and the daily running of the laboratory. You now in turn have made a cross complaint as against your supervisor. There is simply no option for the company logistically in terms of consistency and fairness but to have one investigation”. The Complainant was advised that the investigation would proceed in his absence, and he was encouraged to engage. However, on 14th November The Complainant did give consent for his details to be forwarded the HR Consultant and that he would engage with the disciplinary process.

 The HR Consultant commenced the process by way of meeting of the 20th November, the Complainant was accompanied by his father. The process was finalised In January 2020 and 2 reports issued on the 29th January 2020. 

Report into complaint of Ms A   and the cross complaint of the Applicant. The HR Consultant found:

Taking into account the statements and submissions of all involved that on the balance of probabilities that Ms A was not bullied by the Complainant

Taking into account the statements and submissions of all involved that on the balance of probabilities that Ms A was treated with rudeness by the Complainant

Taking into account the statements and submissions of all involved the Complainant was not bullied by Ms A.

He also made recommendations for a Bullying and Harassment workshop for all staff and a management workshop for middle management

Report into complaint of Mr C and the cross complaint of the Complainant

He found that Mr C  was disrespectfully treated by the Complainant.

He found that the Complainant had not signed off on Analytical Report sheets and had defied direct instruction from his manager.

He found that The Complainant’s throughput could be more efficient.

He did not uphold the allegations of poor time keeping as against The Complainant.

He did not uphold The Complainant’s allegation that Mr C behaved inappropriately on the 21st June 2019.

He did not uphold the Complainants allegation that he was not properly trained on SAP.

A Disciplinary Hearing was arranged with the MD on the 13th February, the Complainant attended on his own, the minutes were furnished to the Complainant.  The outcome letter issued on 24th February 2020. It was noted that all allegations other than one were upheld. It was also noted that the Complainant did not accept that the allegations were in the main warranted and his position vis a vis that of his colleagues remained entirely at odds. In those circumstances where he did not accept any wrongdoing the company has no option but to terminate. He was advised of his right of appeal to Mr John Horgan, independent HR Consultant.

 Mr Horgan, an independent HR consultant was engaged on the 3rd March 2020. He met with the Complainant on the 9th March, the Complainant choose not to be accompanied. The appeal was heard under paragraph 6 of the Disciplinary Appeal Procedure, where the grounds of appeal were that the Appellant “had not committed the offence” The Complainant went through his case in its entirety. Mr Horgan reviewed the totality of the reports, to include minutes of meetings. The Complainant confirmed that he was satisfied with the conduct of the meeting and the manner in which Mr Horgan would conclude the consideration of the matter.  Mr Horgan concluded that the findings of fact and the conclusions the investigator reached in both reports were reasonable and entirely equitable.   He therefore considered whether the decision to dismiss was justified and, in his opinion, it was entirely reasonable and proper for the company to conclude that the employment relationship has irretrievable broken down and that a dismissal was warranted.  He refused the appeal. The Complainant was not happy with the outcome.  He sent numerous communications. He alleged the processes were unfair. He denied all the allegations. He made a number of allegations to include that: 

The Disciplinary process was unfair

That he was not given a reason for his dismissal

The Respondent had to deal with a situation where an employee alleged that she was in fear of another member of staff and that was impacting on her health. She also alleged that this was aggravated by the Respondent failing to deal with her complaints in a timely manner. The employees in question worked in close proximity to each other, in a confined environment. Due to the speciality of their roles, there was no option of relocation. Ms A made it clear that mediation was not an acceptable option to her. In addition, the Complainants relationship has also broken down with his Manager. These 3 individuals worked together in a limited space and required on going engagement and communication to fulfil their roles.

Due to the size of the company and the limited number of senior managements, external investigators were engaged at great expense. There were four separate stages with three separate external and independent HR specialists:

Preliminary Investigation JMR Consulting

Disciplinary Investigation Kenneth Buchholtz

Disciplinary Hearing the MD

Appeal John Horgan, ex Chairman of the Labour Court

The report of JMR was not shared with Mr Buchholtz, his investigation was a de nova investigation. 

The Applicants Manager Mr C  made the decision of his own volition to lodge a complaint as against the Complainant  in October 2019 where he was challenged in managing the Respondent and there was an escalation in his challenging behaviour. 

It was deemed appropriate, fair and reasonable for the HR Consultant to also deal with this complaint. There was a significant cross over in evidence and witnesses. The Complainant also made cross complaints as against both his colleagues. It was also deemed appropriate, fair and reasonable to deal with these as part of the process. In addition, logistically and from a costs perspective it would have been impossible to do otherwise.  

The Complainant on the 1st November agreed to engaging in the investigation process where all complaints would be investigated simultaneously, on the 7th November had a change of mind but after significant engagement he did subsequently agree to engage. He was invited to be accompanied at all stages. He advised that he was receiving legal advice. He brought his father on two occasions. Thereafter he came on his own. He robustly defended himself. He was provided with minutes of the meetings. There are voice recordings of the internal meetings, but not with the external investigators and the Complainant complains about the absence of same. 

The Complainant attended the Disciplinary Hearing on his own, he accepted no wrongdoing. He continued to make allegations as against his co-workers. It was clear to the Respondent that where the Complainant could not accept the impact of his behaviour on his relationship with his co-workers and where they worked in such close proximity, that the relationships had irretrievably broken down. The Respondent has no option but to dismiss. 

The Complainant invoked his right of appeal to the company decision to dismiss. The appeal was heard by Mr John Horgan, the Complainant was not accompanied. Mr Horgan considered all documentation and the Applicants submission. The Complainant confirmed that he was happy with the manner in which the appeal was conducted.

The Complainant was afforded a fair and independent process

There is no evidence of bias

He was advised of his right to be accompanied at all stages

He engaged in the process’s

He obtained legal advice

Through his own conduct his relationship with his co-workers broke down

He at no stage took any ownership of this situation and he in fact lodged cross complaints that were not upheld

There was no solution to the fact that there was no alternative area to move the Complainant or the complainants.

There was no solution to the breakdown in their relationship. Ms A refused to engage in mediation.

Despite the findings the Complainant would in no way accept any contribution to the situation.

The Respondent did everything possible to provide a fair process.

The Respondent was placed in an impossible position, where an employee was alleging fear for her safety, impact on health, there was no option of redeployment for either party and where, despite the findings, the Complainant maintained a position of full denial.

In these circumstances, the Respondent’s position is that the dismissal was fair and reasonable.  Without prejudice to that position, in the event that there is a finding that the dismissal was not fair, the Respondent submits that the Applicants behaviour significantly contributed to the outcome.  That should be considered in the event that compensation is awarded. 

It is the Respondent’s position that the Applicant’s behaviour led to the outcome.

The Law.

“6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The Adjudicator has given considerable consideration to both submissions and to the relative merits of both cases put forward on both the substantive and procedural issues involved.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a 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”.

Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances. 

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her ”submissions listened to and evaluated”.

With regard to the question of what a reasonable employer would have done in the circumstances, as Lord Denning put it in British Leyland UK Ltd V Swift (1981) “if a reasonable employer might have dismissed him, then the dismissal was fair”. This concept was expanded upon in Abdullah V Tesco Ireland plc (UD1034/2014 in which the EAT stated “What is required of the reasonable employer is to show that s/he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and the sanction of dismissal as not disproportionate”.

At the Hearing the Respondent outlined in great detail their grounds as to why the dismissal was fair. When asked to present his case the Complainant did not expand on his written claim form or documentation submitted, whatsover. As the Complainant was unrepresented,  the Adjudicator requested the Complainant to expand on his complaint on a few occasions but advised my role was not to assist the Complainant with his complaint but to independently evaluate both sides submissions regarding the complaint. The Complainant was again asked by the Adjudicator to outline the reasons why he felt his dismissal was unfair and advised to do so by the Adjudicator. The Complainant finally, in response to this request from the Adjudicator posed two questions to the Respondent as his submission at the Hearing.

What was I dismissed over?

Why I lost my job as it was not made clear to me?

The Respondent, in response, advised that they stood by their submission as answers to these two questions.

Therefore, the Adjudicator has only to rely on the Complainant written Complaint form submitted to the WRC and supporting documentation to describe his complaint. The Respondent did not have the opportunity to question the Complainant on his complaint as he did not outline his complaint at the Hearing.

Based on the submission from the Respondent I find that their action to dismiss was within the band of reasonable responses to the Complainants actions described by the Respondent as the working relationship had irretrievably broken down between the Complainant and his Manager, their duty for the health and safety of and Ms. A and fair procedure was followed in the Investigation and Disciplinary process.  The Complainant had the right to representation throughout the processes, sought legal advice and failed to establish any creditable case at the Hearing in response to the Respondents stated reasons for the dismissal. I find that the Respondents action to dismiss was within the Band of Reasonable responses to the situation it found itself in.

I find that the Complainant was not unfairly dismissed.

Unfair Dismissal