Complainant

Respondent

Parties

Catherine  Riordan

Wincanton Ireland Ltd

Representatives

Matt Merrigan

Aoife McDonnell, IBEC

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-00041048-001

16/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00041048-002

16/11/2020

The Complainant commenced employment as a Goods Inwards Office Manager on 26 August 2002 and earned a salary of €43,624. Her employment was terminated on the grounds of gross misconduct on 27 August 2020 following the conclusion of a disciplinary process where it was found that she had bullied Employee X. She is claiming that she was unfairly dismissed by the Respondent.

The Complainant stated that she started her employment in 2002 and following a Transfer of Undertakings in March 2007, her position transferred to the Respondent where she was engaged as a Goods Inwards Office Team Leader.  

The Bullying Allegations

The Complainant stated that she had requested that Employee X not take notes at a disciplinary meeting in November 2019. She also highlighted that Employee X previously apologised for being disruptive at a disciplinary hearing and asserted that an outcome of a July 2018 incident stated that “Employee X is apologetic for these events”. In addition, she stated that although there was a recommendation made in 2018 that note takers should be fully able to take accurate notes in meetings, this was never implemented and Employee X was not up to speed with taking notes.  She also stated that during previous meetings, she was constantly interrupted by Employee X, in her capacity as the note taker, when she was trying to respond to the interviewer. She disputed that she did not adhere to any requests to slow down during the meeting so that accurate minutes could be captured.   

She agreed that during an absence review meeting she highlighted that she had fewer sick days than anyone else at the meeting.

She disputed that she ignored any requests to complete ordinary day to day tasks and asserted that the Investigator did not find that there was any evidence in respect of this.

Having been made aware of the allegations made against her the Complainant went on work related stress leave prior to the investigation being commenced on 5 December 2019.

On her return to work in May 2020, the Complainant asked for the grievance from Employee X to be dropped as she stated that it had caused her undue stress and was unfounded.  She was informed however that it would be progressed and when she asked for the chance to work for 3 months before any meetings took place, she was told that she would only be given three weeks at which stage she received an invite to an investigation meeting.

The Investigation

The Complainant stated that the investigation was conducted by the CPL&D Manager and not by the SM as she understood from the invite.  She stated that the SM, who was the note taker, failed to take proper notes of the meeting which caused her upset and disappointment. Specifically, she stated that the Investigator had made some comments and pointed at her which was not recorded by the SM.  She also asserted that a 2018 report had highlighted concerns with the CPL&D Manager’s meeting skills which should have been addressed by training but which had not been.

The Complainant stated that the investigation reconvened on 6 July and the CPL&D Manager suggested mediation. She believed that she had not been given a chance to respond to the allegations and did not want to engage in mediation prior to this. She also highlighted that she had previously been involved in mediation but that the recommendations had not been implemented by the Respondent.

The Complainant also asserted that she had a number of issues with the witness statements gathered by the Investigator, namely the statements completed on 13,, 14, 16 and 23 July 2020.

Following receipt of the report in August 2020, she emailed that HR Manager and informed her the she wished to challenge findings of the investigation but was told that she could only do so at the disciplinary meeting. She also informed the HR Manager that she was open to mediation at that stage and highlighted that the Investigator’s earlier suggestion that she should engage in this process.

Given that she was not allowed to challenge the findings of the investigation report, the Complainant decided to submit a grievance because it was too serious and a damning report to let it wait until a disciplinary meeting.

The Disciplinary Hearing

A disciplinary hearing was held with the H&S Mgr on 18 August. While the timing of the hearing was challenged by the Complainant on the basis that the investigation of her grievance was not completed, the hearing proceeded. The Complainant highlighted a number of difficulties that she had with the investigation at the hearing. 

The disciplinary hearing was reconvened for the second time on 21 August and at this meeting she outlined a number of issues that she had with Employee X over the years which caused her great distress.  She also stated that she had to speak with the General Manager to discuss the matter given the extent to which it was impacting her. 

 The Grievance Investigation

The Investigation into the Complainant’s grievance about the Investigator’s Report was carried out by the HR Manager. The Complainant highlighted that the HR Manager had also been the notetaker at the disciplinary hearing and had explained to the Complainant that she could not appeal the findings of the investigation but that she could address any issues she had with these at the disciplinary hearing. Having been informed on 26 August that her grievance was not being upheld, she appealed the findings to the Operations Manager.     

The Dismissal

The Complainant was informed on 27 August 2020 that she was being summarily dismissed on the grounds of gross misconduct and was subsequently made aware on 31 August that she could appeal her dismissal to the Operations Manager.

The Appeals

The Complainant stated that she appealed the findings of the grievance investigation to the Operations Manager on 26 August and that she also sent an appeal of the decision to dismiss her on 31 August 2020.

The appeal hearing of the grievance investigation was held on 10 September. The Complainant stated that the person whom she wished to accompany her was unavailable but that the meeting proceeded nonetheless. She also highlighted that when she tried to bring up some points at the meeting, the Operations Manager refused to consider them because he claimed that she hadn’t given him further information that he had requested prior to the meeting. The Complainant was informed on 11 September that her appeal of the grievance outcome was unsuccessful.

The appeal hearing of the dismissal was held on 21 September 2020. The Complainant stated that the person whom she wished to accompany her was uncontactable and she was therefore denied the opportunity to bring a person of support. She added that the Operations Manager began the meeting by telling her that he would read through a three-page appeal document that he had prepared and informed her that she would have an opportunity to respond to the comments when he had finished. She asserted that this was unfair.

She was informed on 22 September that her appeal was unsuccessful and that the decision to dismiss her was upheld.

The Complainant commenced employment as Goods Inwards Office Manager on 26 August 2002. She was transferred to the Respondent following a Transfer of Undertaking on 28

January 2008 and held the role of Stock Admin Team Leader on a contract of

indefinite duration.

In November 2019, a grievance was raised against the Complainant, in which she was accused by Employee X of bullying.

The grievance referred to the following:

·       the Complainant objected to Employee X taking minutes at a meeting on 13 November 2019 and questioned Employee X’s ability to do so

·       the Complainant told a colleague, who was also present at the meeting, that Employee X had previously apologised for being disruptive at a disciplinary hearing. Employee X stated in her grievance form that this claim was untrue, and furthermore, it was found that the minutes of this meeting had been fabricated to look as though this had happened

·       the Complainant ignored Employee X’s requests to slow down during previous meetings in order for her to capture accurate minutes;

·       the Complainant shared confidential and private information in meetings. Specifically, during an absence review meeting with another employee, she referred to Employee X’s absence record;

·       the Complainant’s behaviour towards Employee X was repeatedly inappropriate, which caused her humiliation and embarrassment in front of colleagues (for example, the Complainant claimed that Employee X had “had a go at her” in the past);

·       the Complainant ignored Employee X’s requests to complete ordinary day to day tasks, such as collecting letters.

On 3 December 2019 the Complainant was notified of the complaint against her and invited toattend a meeting on 5 December 2019. The investigation was put on hold however because of the Complainant’s absence from work due to work relatedstress.

The investigation recommenced following the Complainant’s return to work and she was invited to attend a meeting on 16 June 2020 with the CI and Planning Manager along with a colleague of her choice. The Complainant refuted the allegations and claimed that no onehad listened to her but made no points to clear her name. The meeting was reconvened on 6 July 2020 and the Complainant was asked for a response to the allegations made against her. She was also made aware that Employees X was willing to engage in mediation but she refused to do so.

On 7 August 2020, the Complainant was informed in writing that the initial investigation had been completed and that the allegations had been upheld. Later that day the Complainant was issued with a letter inviting her to attend a disciplinary meeting on 18 August. The Complainant was informed how the disciplinary meeting would proceed and of her associated rights. She was also provided with a copy of the investigation report which included the investigation meeting minutes and witness meeting minutes.  On 7 August 2020, the Complainant informed the Respondent that she wished to appeal the outcome of the investigation because she rejected the allegations of bullying and also stated that she would attend mediation.

On 12 August 2020, the HR Manager informed the Complainant that there would be an opportunity for her to raise any issues she had with the investigation report at the disciplinary hearing. On 17 August 2020, the Complainant submitted a grievance about the outcome of the investigation report.On 18 August 2020, the Health and Safety Manager held the first disciplinary meeting. The meeting was adjourned to reconvene at a later date to allow the Health and Safety Manager to speak to witnesses whom the Complainant had referred to. On 21 August 2020, the resumed disciplinary meeting was held and theComplainant was accompanied. The Health and Safety Manager explained that she had interviewed the witnesses who had been namedby the Complainant. The Complainant noted that she did not agree with the matter moving to a disciplinary hearing as she had submitted a grievance against the investigation report.

On 25 August 2020, the investigation into the Complainant’s grievance was held. The

Complainant requested a quick response.  On 26 August 2020, the outcome of the grievance was issued. The grievance was not upheld and the Complainant appealed the grievance outcome.

On 27 August 2020, the disciplinary hearing was reconvened for the final time and the Complainant was informed that she was being summarily dismissed. This was formally confirmed to her in writing on 31 August 2020 and she was also given the opportunity to appeal the decision.

On 3 September 2020, the Complainant wrote to the Operations Manager stating that she wished to appeal the decision to dismiss her. Following a request from the Operations Manager, the Complainant submitted a statement which detailed her grounds of appeal.

On 10 September 2020, the appeal hearing for the Complainant’s grievance was heard. There was a delay in scheduling this meeting as the Complainant was unable to attend a meeting before this date. On 11 September 2020, the decision was made to uphold the original decision in response to the Complainant’s appeal of her grievance.

On 16 September 2020, the Complainant was invited to attend a disciplinary appeal meeting, which was scheduled for 21 September 2020. The invite for this meeting informed the Complainant of her rights. On 16 September 2020, the Operations Manager met with the parties who were involved in the process individually to establish whether the process had been fair and impartial.

On 21 September 2020, the Operations Manager met with the Complainant to hear her point of view. The Complainant attended without a colleague, although she was afforded the opportunity to bring one. The Operations Manager went through the appeal in detail and afforded the Complainant the opportunity to respond to each point. On 22 September 2020, the Operations Manager wrote to the Complainant confirming that he had found theinvestigation and disciplinary process to be fair and equitable. He also highlighted that the Complainant hadshown no remorse for her actions toward her colleagues and so the decision to dismiss wasupheld.

THE LAW:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

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 qualification 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 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.

Section 6(6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

Section 7 of the Act, in relevant part, makes provision as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

The combined effect of the above sections of the Act require me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was substantively and procedurally fair. 

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is helpfully set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against. 

The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent also needs to show that fair process and procedures were applied when conducting the disciplinary process. In cases where a dismissal involves gross misconduct, the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrong doing.  The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

In the instant case, I note that the Complainant was found to have engaged in bullying behaviour against Employee X and was dismissed on the grounds of gross misconduct.  I also note that the Respondent’s Bullying and Harassment Policy states that bullying is “repeated inappropriatebehaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others which could reasonably be regarded as undermining the individual’s right to dignity at work” and that the Policy deems bullying to be inter alia “undermining behaviour” and “humiliation”. In addition, the Policy states that “all bullying and harassment is misconduct and is a disciplinary offence which will be dealt with under the Company’s disciplinary policy” and that “bullying and harassment will usually be deemed as gross misconduct which can lead to summary dismissal without notice”.

Given that the Complainant was found to have engaged in behaviours which constituted bullying in accordance with the Respondent’s Bullying and Harassment Policy, that the Policy provides for summary dismissal and that there were no mitigating circumstances presented by her, I find that the decision to dismiss her was substantively fair. While I noted that the H&S Manager, when questioned by me, stated that she did not consider any alternatives to dismissal, I find that, notwithstanding her failure to do so, the decision to dismiss was reasonable and in line with Company’s procedures, especially given that the Complainant had demonstrated no remorse whatsoever for her actions.

Having therefore found that the dismissal was substantively fair, I must now examine if it was procedurally fair.

I note firstly that the Complainant was afforded a full investigation of the allegations made against her, that a grievance she took in relation to the findings of the investigation was heard, that she was given the opportunity to respond to the findings of the investigation during the disciplinary hearing, was given her full rights of appeal in respect of both the grievance as well as the dismissal and was afforded the opportunity to be accompanied by a colleague at every stage throughout the process.

While it was unusual, and indeed not ideal, that the Operations Manager conducted both the appeal of the dismissal and the findings of the grievance investigation, my concerns in this regard were allayed by the very thorough appeal process that was carried out. Specifically, it would normally be expected that an appeal hearing would only involve a meeting with the appellant and an examination of the grounds of appeal. In the instant case however, the Operations Manager went above and beyond these norms and stepped back from his day to day role for a week to conduct the appeal process. Specifically, he interviewed each employee who had participated in the investigation to satisfy himself that the Investigator had properly gathered the facts and also met with the Health and Safety Manager to assure himself that the basis for the decision to dismiss the Complainant was fair and reasonable.

I was also concerned that the HR Manager, who had been peripherally involved at various stages throughout the disciplinary process, conducted the grievance investigation, which was essentially an appeal of the findings of the investigation carried out by the CPL&D Manager. While I note the Respondent’s assertion that there was no one else in the company who was available to handle the investigation given that all of the other managers had been involved in the matter prior to this, it would have been preferable, in my view, if the investigation had been outsourced to an outside consultant. Once again however, my concerns about any possible unfairness in this regard were assuaged by the extremely diligent appeal process where all of the parties involved in the original investigation were spoken with. 

Moreover, I also note that the procedural deficiencies which I have identified must be considered in line with section 6(1) of the Act which states that a dismissal should be deemed unfair “unless, having regard to all the circumstances, (my emphasis) there were substantial grounds justifying the dismissal”  In that regard, I note the case of Elstone v CIE (High Court, 13 March 1989, unrep.) it was held:

“that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s. (6)1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of the other.”

In addition, I note that in the case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J held that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result.”

Having regard to the appeal process conducted by the Operations Manager and the two cases cited above, I am satisfied that the procedural breaches which I have identified were insufficient to render the dismissal procedurally unfair.

Finally, I must highlight that there was a consistent suggestion throughout the Complainant’s written and verbal evidence about how unfairly she had been treated throughout the process as well as an intimation that her dismissal was pre-determined from the outset. Given that she refused to engage in mediation with Employee X however, despite a specific request from the Investigator that she do so, in order to avoid the matter being investigated, I find that these assertions about a pre-determined outcome were baseless and without foundation. While I noted that she did ultimately seek to engage in a mediation process after the investigation was complete, it was reasonable for the Respondent to reject such overtures at that stage given that the findings of the investigation left them with little option other than to proceed with the next stage of the disciplinary process.

Taking all of the above into account, I find that the Complainant was not unfairly dismissed.

CA-00041048-001: I find that the Complainant was not unfairly dismissed for the reasons set out above.

CA-00041048-002: As I have found that the Complainant was not unfairly dismissed, this complaint is not well founded.