Complainant

Respondent

Parties

Shane Kehoe

Fettercairn Youth Horse Project

Representatives

Gerry Fitzgibbon, HR Manager Irish Water

Michelle Quinn, Colm O'Cochlain & Company 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-00035040-001

04/03/2020

The complainant was employed by the respondent as a trainee instructor with the respondent from the 11th of July 2010 and was dismissed on 10th September 2019 for an act of alleged Gross Misconduct.

The complainant has submitted a claim of unfair dismissal under Section 8 of the Unfair Dismissals Act, 1977.

The claim was lodged on the 4th of March 2020 and so the cognisable 6-month period for the complaints dates from the 5th of September 2019.

The respondent submits s that the complainant was dismissed for gross misconduct following the sending of a text message which it considered to represent a real threat of violence to the complainants manager.

By text message dated 12th of June 2019 from the Complainant to another member of the Respondent’s staff, the Complainant made a threat of a serious nature regarding another staff member. The text message read: “We will see who has big balls when my family and Michelle’s fam come to meet her on Friday”

The recipient of the text message Ms. L was concerned of a potential threat of violence and reported the text message to her manager. The reasons for her concern are clearly set out in her statement which outlined that the complainant had said that he had nothing to lose and that he was going to pull her (his manager) with him and that she was “in his neck of the woods now before adding “we will see who has big balls when my family and Michelle’s fam come to meet her on Friday”.  The statement by Ms. L also made reference to the complainants mother having entered the yard and driven at speed in her car.

The recipient of the text message, Ms. L was concerned about the safety of special needs children on the yard in close proximity to horses and was worried that the community would lose out if there was trouble .

The text message was brought to the attention of the Board of the Respondent on 28th June 2019 who were immediately and extremely concerned about a threat of violence occurring in the yard.

The Respondent submits that it was gravely concerned about the content of the text message. The Respondent was at all times concerned for the safety and welfare of the relevant staff member and for the children, parents, young helpers, and other staff who would be present on the yard and to whom it owed a duty of care. There was a genuine fear of a threat of violence and the possibility of harm occurring to a member of staff. The Respondent could not simply ignore that.

The Respondent submits that if a violent incident was to occur on the yard it could have led to a very dangerous situation which the Respondent would have been unable to control due to: a. the size of the animals on the yard; and b. the amount of people (including children and children with special needs) who would be on the yard.

The respondent called an emergency Board meeting on that day and the minutes of the meeting note that representatives from Tallaght Travellers Community Development Project/FYHP, Board members present, informed by their own ethnic background and years of working with the Traveller Community believed that the possibility of both families ( SK’s family and his Wife Michelle’s family ) coming to FYHP yard to confront AT(the complainants manager) at some stage ( the intent outlined in the text) represented a threat of violence which was real”.

The Respondent submits that they also contacted the Gardai in relation to the matter and following their advice the decision was made to close the yard to the public for the Friday afternoon in question the 28th of June.   The complainant has submitted that raising this matter with the Gardai had the potential to bring feuding to the complainants door and to his wife’s family (Michelle) who are members of the travelling community.  The respondent submits that individual names were not mentioned in their discussions with the Gardai.

The Complainant was informed of the Respondent’s concern about the text message that same day and that it was to be investigated. The investigative procedure was explained to the Complainant, and he was told that he would be placed on paid suspended leave while an investigation was carried out.

 Section 3.1.2 of the Staff Handbook provides examples of gross misconduct which includes “Violent, threatening or bullying behaviour”.      In accordance with the terms of the Complainant’s contract of employment (Clause 12.2) “in the case of gross misconduct suspension pending immediate investigation may take place”. Similarly, Clause 3.1.4 of the Staff Handbook provides that an employee may be suspended with pay pending an investigation.

On 3rd July 2019 the Respondent wrote to the Complainant confirming that had been placed on paid suspension leave due to the text with stated: “we will see who has big balls when my family and Michelle’s fam. come to meet her on Friday”.

The complainant was further informed that the matter was being treated as gross misconduct and that: “An investigation meeting will be scheduled to take place over the next few days. You will be given ample time to prepare for this meeting and you will receive copies of all documentation beforehand which will be relied upon for this meeting”

The letter also requested that the Complainant not make any contact with other members of staff regarding the incident.

The Respondent was informed that the Complainant had sought to interact with members of staff and yard leaders/minors about the incident. The Respondent duly and by letter dated 1st August 2019 wrote to the Complainant and requested that he refrain from doing so.

By letter dated 27th August 2019 the Respondent requested that the Complainant attend a Hearing on Monday 2nd September 2019 (subsequently postponed at the request of the Complainant to 6th of September).

 It is stated in the letter that: “The purpose of the hearing is to consider the following allegation of Gross Misconduct against you : · An alleged failure by you to meet the standards of the company with regard to conduct, job performance and compliance with rules regulations or instructions.

It is alleged that in relation to you there has been · Violent, threatening and bullying behaviour Which gives the Board serious concerns regarding the safety of our employees and clients.”

 Whilst the Complainant seeks to make the case that the content of the letter of 27th August 2019 contradicts the letter of the 3rd of July 2019 that is simply not the case. The concern in relation to the text message was always that the text was of a violent, threatening and bullying nature/behaviour.

In any event the meeting took place  on 6th September 2019. The Complainant was informed and confirmed that he understood that a serious allegation had been made which could lead to his dismissal. The Complainant informed the meeting that his mental health was affected at the time by  ongoing grievances, and he sought to explain the text as referring to his family coming up to meet the new manager to discuss his mental health.    The Respondent had previously offered to cover the cost of the Claimant attending with his doctor in order that he may discuss any mental health concerns.    It is submitted that the said explanation for the text message does not stand up to scrutiny and it is noted that the said explanation was not mentioned in the Complainant’s submissions.

A Special Board Meeting was held on the 6th of September 2019 and by letter dated 6th September 2019 the Complainant was informed that: “The board are of the opinion that the sending of the text constitutes gross misconduct and represents a failure by you to meet the standards of the company with regards to your conduct and compliance with the FY HP rules and regulations. The board feels that we have no other option other than to terminate your contract.”

The letter further informed the complainant of his right to appeal within 10 working days from 9th September 2019. By letter dated 12th September 2019 the complainant sought to appeal that decision.

 An appeals meeting was scheduled to take place on 16th October 2019. The Complaint was informed of the meeting by letter dated 8th October 2019. The complaint sent a letter on 15th October informing that he was not able to attend the meeting and he sought additional information from the Respondent.

The Complainant’s letter of 15th October 2019 was comprehensively responded to by letter dated 22nd October 2019.

The Claimant was also informed that following his non-attendance at the appeal on 16th October 2019 and confirmed the decision of 10 September 2019 to terminate the complainant’s employment

The complainant submits s that

he was employed as  a trainee instructor with the respondent from the 11th of July 2010 and was dismissed for an act of alleged Gross Misconduct in September 2019,

no alternative to dismissal, was ever considered , by the employer despite there being no previous disciplinary history or sanctions against him or any such proceedings pending,

The matter was mis-handled and grossly unfair and a cynical attempt to avoid paying the complainant a redundancy payment,

On the 28th of June 2019 the complainant was called to a meeting  in the office of the Chairperson where he was informed that a serious issue had been brought to the attention of the Board, namely that a text message sent by the complainant to a colleague had been brought to the attention of the Manager who had brought it to the attention of the Board.

The text message from the complainant stated “ we will see who has big balls when my family and Michelle’s fam. come to meet her on Friday”

At this meeting the complainant was informed that said text message was in the possession of the Board and they considered this to be a very serious matter and that he was now being suspended with immediate effect pending an investigation .

At no stage during the meeting was he asked to give any explanation or clarification as to what he meant by said text.    In attendance at this meeting in addition to the Chairperson were three other members of the Board of Management.

 An extract from the minutes of an emergency Board meeting convened to discuss the matter on 28th of June 2019 stated “ The representatives from Tallaght Travellers Community Development Project/FYHP, Board members present, informed by their own ethnic background and years of working with the Traveller Community believed that the possibility of both families ( SK’s family and his Wife Michelle’s family ) coming to FYHP yard to confront AT (the complainants manager) at some stage ( the intent outlined in the text) , and represented a threat of violence which was real”.

The minutes go on to state that “Our need to act quickly and professionally so as to avert possible criminal action was of paramount importance “

The complainant submits that these statements are without any basis and states that he worked for the FYHP for a number of years and that his wife (Michelle) and her family were known to the FYHP and that  there had never been any incident in that time which would give rise to the belief that both families “ represented a threat of violence which was real”.  

It is also submitted that such accusations had the potential to bring feuding to the complainants door and to his wife’s family who are members of the travelling community.

It is submitted by the complainant that the intention of the text message was that the complainant wanted to meet with his manager to discuss his concerns rather than any perceived underlying threat,

It is submitted that the Board were in possession of all of these messages and that it was thus obvious that there was no reason for “serious concerns regarding the safety of our employees and clients”

The complainant following this meeting received a letter dated the 3rd of July 2019 in which it stated “ We are in receipt of information which gives us serious concerns regarding the safety of our employees and clients, it is for this reason you have been placed on paid suspension leave as from today. This is being treated as gross misconduct.”

The correspondence of the 3rd of July further went on to state that “ An investigation meeting will be scheduled to take place over the next few days . You are entitled to be accompanied by a work colleague or trade union representative at this meeting.” “ We strongly request you refrain from speaking with other members of staff regarding this incident. If you wish to question any witnesses this will be arranged in a safe and confidential environment.”

It is submitted that the complainant is not a member of a Trade Union and would therefore have to rely on a work colleague to accompany him despite being “Strongly requested “ to refrain from speaking to other members of staff regarding the incident.

This was again re-iterated in further correspondence received from the employer dated 1st August in which the employer outlined various interactions it was alleging had taken place between the complainant and various employees which they referred to as “our staff “and went on to “ strongly advise that you refrain from communicating with members of staff/volunteers/leaders /minors”

In response a letter of the 8th of August 2019 was issued which clarified the nature of the interaction and sought various information from the employer as to what information in relation to same it was relying on. No response to same was received.

Repeated requests for information and clarifications have been ignored. The scheduled investigation meeting which was to be held within the next few days did not in fact take place until the 6th of September 2019. (This was delayed due to the fact that a separate investigation into grievances raised by the complainant was also taking place at the time).

In light of the seriousness of the situation , correspondence dated 27th August 2019 issued to the respondent “In relation to the Disciplinary Investigation Hearing which you say you will now schedule, I am still awaiting clarification from you as to who I may bring with me to same , as I am not a member of a Trade Union and as you have already “ strongly expressed that I refrain from contacting any members of staff , Volunteers and yard leaders / minors “ it means it will be impossible for me to have a work colleague attend with me . In the circumstances I am requesting to be accompanied by a nominee of my choice.”

It was reiterated that the complainant could only be accompanied by Trade Union representative or work colleague .

Correspondence dated the 27th of August 2019 issued by the respondent requesting the complainant to attend a Disciplinary Hearing which took place on 6th of September 2019.  The purpose of the hearing was stated as ‘ to consider the following allegations of Gross Misconduct against you : · An alleged failure by you to meet the standards of the company with regard to conduct, job performance and compliance with rules regulations or instructions.    It is alleged that in relation to you there has been · Violent, threatening and bullying behaviour Which gives the Board serious concerns regarding the safety of our employees and clients .

It is submitted that these are new allegations which  contradict the letter of the 3rd of July 2019 which suspended the complainant on foot of different allegations of Gross Misconduct  and that no evidence of his “violent, threatening and bullying behaviour “ has even been produced,

The complainant attended the meeting as scheduled , unaccompanied . At the meeting the complainant pointed out that the text message referred to was part of a chain of text messages and was being taken out of context and in isolation .

When requested by the disciplinary panel to produce the other text messages relating to the one referred to , the complainant declined and pointed out that he had been summoned to a disciplinary hearing to answer allegations of alleged Gross Misconduct based on one text , and despite the respondent being in possession of others which explained the context, it is obvious by seeking them that the disciplinary panel were not aware of them and immediately raises questions as to the capability of the disciplinary panel to conduct a fair hearing without being in possession of the full facts or indeed the context of the particular text.

In addition, it is submitted that the 2 Board Members who conducted the Disciplinary Hearing along with the minute taker at same were also part of the Board making the final decision regarding the complainant’s dismissal.

the minutes of a Special Board Meeting of the 6th of September 2019 states “ All of the Board members had copies of the “text”, the witness statements and the report of the meeting of the 6th of September 2019 signed by all who attended the meeting including SK”

Despite repeated requests for same only one witness statement has ever been produced by the respondent, which is the signed statement of Lynn Campbell dated the 22nd of July 2019.  

The minutes of the 6th of September go on to say “ The Board held a discussion in relation to a new aspect introduced by SK( The complainant Keogh ) i.e., the assertion that the text selected was just one part and that there were other texts before and after the text selected. Although invited to share the texts , he did not do so”.

The minutes go on to state “the text was deemed to be of a serious threatening nature , from a subordinate to the project manager and deemed by the Board that this was totally unacceptable as it would have long term safety implications for the manager/staff and the long-term operation of the project.”

It is submitted that the texts were sent to a colleague and were not sent directly to the Manager of the project but were referred to by the Board as threatening texts to his manager

Following the Disciplinary meeting held on the 6th of September 2019, correspondence issued from the respondent dated the 10th of September 2019 informing the complainant that “ Subsequent to the meeting, the Board of FHYP have met and considered the texts the witness statements, your input and the report of the meeting signed by all who attended the meeting including yourself. The Board are of the opinion that the sending of the text constitutes gross misconduct and represents a failure by you to meet the standards of the company with regards to your conduct and compliance with the FHYP rules and regulations.

The Board feel that we have no other option than to terminate your contract . In order that we comply with point 12.2 of your contract and the Minimum Notice and Terms of Employment Act 1973-2001, we are giving you four weeks’ notice from today the 10th of September . You will receive payment up to Tuesday 8th October 2019.

We would also advise that you have the right to appeal this decision in writing within 10 working days from Tuesday the 10th of September 2019.   A letter appealing the decision to Terminate employment was issued to the respondent on the 12th of September 2019.

Correspondence was received subsequently dated the 8th of October 2019 appointing an external consultant to hear the appeal on Wednesday 16th October 2019.   Correspondence issued to the respondent on the 15th of October 2019 advising that the complainant would not be attending the appeal hearing and seeking various information in order to prepare for the Appeal Hearing.

The complainant did not attend the appeal hearing on the 16th of October and the hearing proceeded in his absence.

 A response to the letter of 15th of October was issued by the respondent dated the 22nd of October 2019 in which they reply as follows : “ 1. The matters raised in your letter of the 12th of September were to be addressed at your appeal. 2. The grievance issue has been fully addressed and investigated and is separate from this Disciplinary process. 3. There are no requirements for Ms. Lalor to have professional qualifications 4. You could have referenced any issues in relation to the minutes at the appeal hearing as arranged 5. The letter of the 10th of September 2019 was issued following a full investigation and conclusions were drawn following same .

 Following your non- attendance at your appeal hearing on the 16th of October 2019 and inadequate explanation as to why you could not attend, we confirm the Board’s decision of the 10th of September to terminate your employment. Furthermore, we confirm the Boards decision that the appeals process is now complete. “  On the 29th of October 2019 correspondence issued to the respondent in response to the above to which no response was received .

The fact of dismissal in this case is not in dispute.  The dates of the employment are also not in dispute. 

The respondent submits s that the complainant was dismissed for gross misconduct following the sending of a text message which it considered to represent a real threat of violence to the complainants manager

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.

The Act deems a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of the above sections of the Act requires me to consider whether or not the respondent’s decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances. 

It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish either the guilt or innocence of the employee.

In Bank of Ireland v Reilly[2015] IEHC 241, Noonan J. noted that s6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However,

“That is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  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 needs to show that fair process and procedures were applied when conducting the disciplinary process.

Notwithstanding the absence of appropriate procedures there can be occasions when the gross misconduct complained of may be such that it is evident that the outcome would inevitably have led to dismissal, and this may overcome procedural deficiencies.  I therefore need to consider the reasonableness and proportionality of the decision to dismiss.

The Complainant submits that the Respondent “went for the nuclear option of dismissal without giving any consideration to any alternative sanction”.

It has been clearly established, that the fact that a lesser sanction could have been imposed by the employer is irrelevant, provided that the sanction fell within the range of reasonable responses open to him/her. Cases such as Frank Shortt v Royal Liver Assurance Limited ([2009] E.L.R. 240) illustrate that once an employer can show that s/he adopted a diligent, fair, and reasonable approach to both disciplinary procedures and sanctions, it is not the role of the courts or tribunals to conclude that the employer should have acted differently.

The respondent in support of its case also submitted the case of  Bigaignon v Powerteam Electrical Services Limited (UD 939/2010), the employee in that case was dismissed for gross misconduct after he failed a random alcohol and drug test, having tested positive for cannabis.

In addition, the EAT have accepted that the test to be applied in considering whether the sanction was reasonable was as set out in the case of Noritake (Ireland) Limited v Kenna (UD88/1983).

In Bank of Ireland v Reilly 2015 IEHC241 where Mr. Justice Noonan approved the following passage: “The correct test was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, and another quite reasonably take a different view.”

The complainant advised the hearing that he had taken up employment soon after his dismissal and it emerged that he is in fact in a better position financially following the dismissal and that no loss has been incurred.

I note that the complainant claims that the offending text message was part of a chain of text messages which he submits put a different context on the message and which he stated he raised at the disciplinary hearing where he indicated that this chain of messages would contextualise the offending message.  However, I note that the complainant advised the hearing that he had declined to produce these messages when asked by the Board to produce them.    The complainants reasoning for this was that they were already in possession of the text messages.

The fact of the sending of the  text message and its content are not denied by the complainant.  The complainant at the hearing sought to assert that the text message was referring to a scheduled meeting with the respondent however, I am satisfied from the evidence adduced that no such meeting had been arranged at that point in time and that there was no arrangement for the complainants family and or his wife’s family to attend his place at work other than the purpose which was construed by the recipient of the text.

A witness for the respondent at the hearing also gave evidence that her concerns were increased due to the fact that the complainants mother had  driven in and around the yard at speed in a dangerous fashion which had the potential to startle the ponies in the yard who could if startled cause severe harm to a rider or any person in the vicinity.  The witness also advised the hearing that the complainant had in the text messages made reference to having nothing to lose and pulling the manager with him he also stated that she was in his neck of the woods now.

The complainant submits that respondents assertions and misrepresentation to the Gardai that the text messages represented ‘a real threat of violence’ had the potential to bring feuding to the door for his wife’s family who are members of the Travelling Community as it served to attach an assertion to them that they are violent.  The respondent in reply to this stated that no names were mentioned in its discussions with the Gardai.

In considering this matter I note that the complainant did not attend his appeal meeting and states that the reason for this is that he was unaware as to who could accompany him at this meeting given that he had been told by the respondent not to discuss the matter with other staff members or minors.  In considering this as a reason for his non-attendance at the appeal hearing I note that the respondent  advised the complainant  that he could be accompanied by a trade union rep or a colleague.  

The respondent in the present case has stated that it had contacted the guards after the threatening text message was brought to their attention and stated that the guards had advised them to close the centre for the day due to this threat.  

The respondent stated that they felt they had no choice but to follow this advice given the fact that there was a threat and given that such threat could endanger the lives of children with special needs and about 20 ponies in the yard as well as other staff members.

The complainant has submitted that the respondent Board went further to discredit the complainant both with the Local Authority and with the Gardaí by describing both the complainant’s Family and his Wife’s family as representing a” threat of violence which was real”.  The respondent at the hearing reassured the complainant that no names were mentioned when they approached the Gardai for advice.

The complainant has also asserted that he was denied natural justice when his appeal hearing proceeded in his absence as the respondent stated that they were not satisfied as to the complainant’s reasons for not being able to attend on the day.

I also note the assertion by the complainant that the process was unfair given that the disciplinary hearing was carried out by two of the Board members who were also in attendance at the dismissal hearing.  While I am satisfied that this was not ideal,  I am also satisfied that any procedural deficiencies 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 totality of the written and oral evidence adduced  I am satisfied that there were some procedural deficiencies but that these were insufficient to render the dismissal procedurally unfair.

Taking into account the seriousness of the allegation, in conjunction with the Respondent obligations towards the children in their care and given that they are working with potentially dangerous animals, the fact that the respondent has responsibility for the safety of children with special needs and that the children while on the respondents premises are interacting with ponies whom if startled could inflict severe and fatal injuries it is clear that the respondent could not take a chance that a disruption of the kind which was threatened in the text message which could lead to startling horses and cause them to injure children and staff members would take place.

In addition, I note the respondents evidence that they informed the Gardai of the text message and the perceived threat and that the advice of the Gardai was to advise the respondent to close the yard to the public for the afternoon which showed the seriousness with which the Gardai treated the matter.  The closure of the yard for the afternoon was a very serious action and one which the respondent stated it was forced to take upon advice from the Gardai and given the perceived threat to children, staff members and animals which can behave dangerously when startled.  

Having regard to all of the circumstances of the instant case  I am satisfied that the decision to dismiss the Complainant was within the band of reasonableness.

Accordingly, having regard to all of the circumstances in this case I determine that the conduct of the respondent was reasonable and the decision to dismiss was not unfair.

I declare this claim to be not well founded.