ADJ-00027573

Complainant

Respondent

Anonymised Parties

A Sales Executive

A Software Company

Representatives

Daniel Johnson, Johnson & Company

Desmond Ryan BL instructed by Matheson 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-00035213-001

12/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00035213-002

12/03/2020

The Complainant commenced employment with the Respondent on 12 December 2016 and was initially employed in the role of Account Executive prior to his promotion to the role of Enterprise Account Executive in April 2019. He was dismissed on the grounds of serious misconduct on 17 September 2019 following allegations of bullying having been made against him. He asserted that his annual remuneration was €306,492, which was disputed by the Respondent.

The Complainant stated that the dismissal was unfair on the following grounds:

·       The investigation was unfair because there was not a proper division between the investigation process and the disciplinary process

·       The disciplinary hearing was unfair because it failed to take into account the personal relationship between the Complainant and Mr Q, one of the two parties who made a complaint against him

·       Robust and coarse language was part of the workplace culture. Specifically, it was asserted that the Complainant had a robust relationship with Mr P his line manager where the use of coarse language was not unusual.

·       Refusal to allow cross examination/questioning of the witnesses. It was asserted that both Mr P and Mr Q should have been made available by the Respondent on the day of the disciplinary hearing to be cross-examined by the Complainant.

·       The Complainant should have been afforded the right to legal representation given the complexity of both the investigative and disciplinary processes

·       There was no finding of gross misconduct and the disciplinary process was not incremental

·       There was no formal warning issued to the Complainant prior to the dismissal. It was asserted that this was contrary to the procedures in the Employee Handbook

·       The precise grounds for the Complainant’s dismissal were unclear in the dismissal letter. Specifically, the letter did not outline what words were used by the Complainant to support the decision to dismiss and did not explain what behaviour was either “aggressive” or “extreme in nature”

·       It was also asserted that the decision to dismiss was made by an employee who was not impartial given his prior involvement in the process

·       The dismissal was a disproportionate sanction and far too much emphasis was placed on informal emails and discussions instead of formal procedures

·       The Respondent augmented some of the allegations during the disciplinary process

·       There were no mitigating factors taken into account such as the impact of the dismissal on the Complainant’s personal circumstances

·       The suspension was unnecessary and was inordinately lengthy

·       The Complainant was denied his right to fair procedures because he was not made aware of all the allegations against him at the very start of the process

·       The complaints of the two parties (Mr P and Mr Q) who made the bullying allegations against the Complainant are vague and implausible as examples of bullying and harassment

·       It was clear from a message sent by the Complainant’s line manager that a decision had been made well in advance of his ultimate dismissal to terminate his employment. 

The Complainant commenced employment with the Respondent on 12 December 2016 and was employed in the role of Account Executive. The Complainant performed very successfully in his sales role and was consistently promoted, ultimately moving to the role of Enterprise Account Executive in April 2019 

The Complainant’s employment was terminated on the grounds of conduct on 17 September 2019, following a full and fair investigatory and disciplinary process and an appeal process. The conduct in question related to bullying of his manager and another colleague, in clear contravention of the Respondent’s procedures, set out in the Employee Handbook. Initially, the Complainant was informally warned but his conduct then deteriorated which led to his colleagues issuing complaints under the Respondent’s bullying and harassment policy. The Complainant’s appeal against the decision to dismiss was unsuccessful in February 2020.

The Respondent stated that they are fully committed to providing a work environment free from harassment and bullying of any kind. As set out in the Respondent’s Harassment, Sexual Harassment, and Bullying policy (the “HSB Policy”), any complaint of bullying is treated extremely seriously and, after investigation and when substantiated, can be regarded as grounds for disciplinary action up to and including dismissal with or without notice. 

The Respondent stated that the Complainant’s interactions and communications with his colleagues via Slack, a channel-based messaging platform, were frequently problematic and required intervention by management on various occasions. In particular, the Senior People Ops Business Partner with the Respondent and the VP Sales specifically met with the Complainant on 7th May 2019 to discuss this issue as one of two very important matters: first, the Complainant’s new Enterprise AE role at the Respondent and secondly, the fact that the Complainant’s behaviour and language were not in keeping with the Respondent’s culture and values and needed to stop immediately. 

The Respondent stated that it was made extremely clear to the Complainant at this meeting and in a follow-up correspondence on 8th May 2019 that these types of behaviours and communications with colleagues were completely unacceptable, were not in keeping with the Respondent’s culture and values and would not be tolerated if they continued. Significant improvement in this regard was expressly characterised as being ‘critical to [the Complainant’s] future at the Respondent’. Accordingly, the Respondent stated that the Complainant was clearly on notice of the seriousness of this wrongdoing and of the fact that it would not be tolerated going forward. In addition, the VP Sales’s letter attached a document defining the role and the expectations for it, which included very clear requirements in relation to behaviour, including not engaging in “aggressive or profane behaviour or communications that could be deemed offensive to colleagues 

The Respondent stated that they sought to deal with the issues at that stage on an informal basis, as appropriate for a first offence and with a view to giving the Complainant a chance to improve his tone, reactions, and behaviours. The Complainant responded via email on 15 May 2019 and apologised for his language, which he acknowledged was “too direct and probably rude.” The Respondent stated that this did not nearly capture the seriousness of the Complainant’s behaviour but at least it did indicate an awareness on his part that the said behaviour was unacceptable. The Respondent added that the Complainant was afforded every reasonable opportunity on an informal basis on several occasions to re-evaluate his aggressive and inappropriate behaviours. Notwithstanding this, it was asserted that the Complainant’s inappropriate and unacceptable language and behaviours only worsened over time. This situation then culminated in two formal complaints being submitted against the Complainant on 23 May 2019 and 3 June 2019 respectively which, in turn, led to an investigation and subsequently a disciplinary process. 

The said complaints of bullying and harassment were brought by the Complainant’s colleague, Mr Q and his manager, Mr P against the Complainant. These allegations, although they related to similar issues, were independent of each other and were investigated thoroughly over a three-month period in accordance with the Respondent’s HSB Policy. 

In light of the foregoing, and the clear admissions of the Complainant, the Respondent decided to place the Complainant on suspension on 6 June 2019 with pay pending further investigation in relation to the issues that had arisen. In coming to this decision, the Senior People Ops Business Partner, considered the seriousness of the allegations and discussed her genuine concerns with the business that the Complainant would repeat the conduct in question, which in turn, could cause personal, business and reputational issues for the Respondent. Therefore, the Respondent found that allowing the Complainant to potentially continue his behaviour risked impacting the Respondent’s obligation to provide a harassment-free workplace for its employees, and ultimately a decision was made to suspend the Complainant on this basis. The Complainant was informed in writing of the suspension and also that same was not a disciplinary sanction. The Respondent stated that the precautionary suspension was entirely lawful, necessary and appropriate in all the circumstances, given the extremely concerning pattern of behaviour under investigation and the requirements of the HSB policy. 

Where an employee alleges bullying/harassment for the purposes of the HSB Policy, the Respondent stated that the said policy sets out the steps that must be undertaken by the Respondent and relevant parties in respect of both an informal stage and a formal stage. Pursuant to this HSB Policy, a fact-gathering exercise was carried out as part of the investigation into the allegations made against the Complainant, which then led to the production of a report, consisting of two separate reports responding to both of the bullying complaints, that recommended that there was enough supporting evidence to warrant the matter being referred for consideration under the Respondent’s disciplinary procedure. 

The Respondent stated that they conducted a scrupulously fair investigation process, in which the Complainant was afforded every opportunity to contribute to the investigation process. The said investigation process was carried out by the Director Commercial Sales, who was assisted by the PeopleOps Representative. The Complainant was provided with all relevant information including statements from the two parties who complained against him in good time prior to the investigation interview with him. The Investigator then met with the Complainant where the Complainant stated his case and responded to the statements from the two parties who complained against him over a three hour period. 

The Respondent stated that the Complainant requested and was granted a further opportunity after the interview meeting to document his comments, which he provided to the Investigator on 11 July 2019. The Complainant was then provided with an initial draft of the investigation report to comment on before it was finalised and, on foot of this, provided further comments to the Investigator on 30 July 2019.The Investigator’s reports and conclusions were sent to the VP Business Partner Group, for review, as a further internal safeguard in the investigation process. The recommendation made by the VP Business Partner Group was that the allegations should be considered further under the Respondent’s disciplinary procedure. The Complainant’s complete comments responding to the Report were provided to the VP Business Partner Group with the Report materials. The Respondent highlighted that the Complainant was afforded the opportunity to appeal the decision of the VP Business Partner Group but he confirmed via email on 2nd September 2019 that he did not wish to appeal the decision to have the claims reviewed under the disciplinary procedure. 

Accordingly, a disciplinary meeting was convened for 6th September 2019. This was chaired by the VP Sales who confirmed with the Complainant that the meeting would deal with each claim independently and would start with the claim made by his colleague Mr Q. The Respondent stated that the Complainant’s colleague’s complaint raised very serious concerns regarding the manner in which he interacted and communicated with his colleagues. The Complainant’s position was that he was frustrated by errors in account and lead allocation which aggravated the circumstances in which the behaviour occurred, but the Complainant himself acknowledged that his language and behaviour were both unprofessional and disrespectful and merited discipline, although he denied that it constituted bullying and harassment. The Respondent stated that Mr P’s (the Complainant’s line manager’s) complaint also raised very serious concerns regarding the manner in which the Complainant interacted and communicated with him. The Complainant again accepted that the language he used in messages to Mr P was not acceptable in any setting. He also acknowledged in the meeting that Mr P had acted in a more “professional” manner for the past number of months and that the Complainant should have improved his behaviour then, but the Complainant accepted that his language had actually become worse in the 2-3 months before his suspension. 

The Respondent stated that the Complainant acknowledged that much of what he said was “too direct” and acknowledged that Mr P had asked him to stop. The Complainant also acknowledged that the language he used was not acceptable in any setting and understood why Mr P wanted to show him that this behaviour is against the law and Respondent policy. By way of further specific example of a Whatsapp message and Whatsapp recording sent by the Complainant to Mr P, the Complainant acknowledged that Mr P may have found this message threatening. The Respondent stated that the Complainant recalled that he left a voice message where he said something like “either you do something or I will do something aboutit.”. Indeed, the Complainant went further by informing Mr P that he should be “abstract and neutral” in relation to his colleague’s grievance and that Mr P should “not take sides in my escalation against Mr Q because you will only incriminate yourself.This is my last piece of advice to you.” 

The Respondent stated that the Disciplinary Chairperson ultimately concluded that, as regards his colleague’s Mr Q’s complaint, there was repeated intimidating, manipulative, and undermining behaviour towards his colleague, which constituted bullying and was in breach of the Respondent’s Harassment, Sexual Harassment, and Bullying policy. In the case of Mr P’s complaint, the Disciplinary Chairperson concluded that the Complainant’s behaviour was unwarranted, aggressive, and extreme in nature. The Respondent stated that these behaviours occurred on many occasions over a sustained period and were intended as a form of intimidation and bullying, notwithstanding the fact that the Complainant was made aware of the effect of his behaviour by Mr P who repeatedly asked the Complainant to stop this behaviour.

Accordingly, the Disciplinary Chair concluded overall that, having regard to the two complaints, the Complainant’s behaviour constituted bullying and was a very serious breach of the Respondent’s Harassment, Sexual Harassment, and Bullying policy. The Respondent stated that the Disciplinary Chair gave consideration to all appropriate matters, including the informal discussion and confirming emails on May 7-15 2019 and multiple opportunities afforded to the Complainant to improve his behaviours, and concluded that the Complainant’s behaviour towards Mr P amounted to very serious misconduct. In addition to the findings concerning the complaint made by his colleague, the Disciplinary Chair concluded that the appropriate sanction under the Respondent’s disciplinary procedure was dismissal with notice. The Respondent stated that the decision was arrived at in light of how serious and sustained the Complainant’s misconduct had been. 

The Respondent also asserted that there was clear evidence that the Disciplinary Chair considered the viability of alternative sanctions such as demotion or redeployment as an alternative to dismissal, but concluded that those sanctions would not be appropriate in this case, given the repeated nature of this serious misconduct, in circumstances where the Complainant’s behaviour worsened after an informal, corrective discussion (which was followed by a reminder in writing that he acknowledged receiving), in addition to the instances when he acknowledged he was told repeatedly to “stop” by at least one complaining party. 

The Respondent stated that the Complainant was notified of his right to appeal against this decision to dismiss, by sending the grounds of appeal in writing to the Executive Vice President EMEA, which the Complainant duly did. A full and fair appeal process took place and ultimately concluded that the decision to dismiss should be upheld in all the circumstances.

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

ANALYSIS

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.

I note firstly that much was made by the Respondent of a meeting held on 7 May 2019 and attended by the Complainant as well as Mr X, the Vice President and Ms Z, the People Operations Partner. The purpose of this meeting was held both to discuss issues the Respondent had with the Complainant over a new role he had recently assumed as well as his recent behaviours. Both Mr X as well as Ms Z stated that it was clearly highlighted to the Complainant at this meeting that his conduct needed to improve and Mr X gave evidence that the subsequent written communications from this meeting effectively constituted a warning.

Having reviewed the two page email of 8 May that followed the meeting however, I find that this did not represent a warning in accordance with the Respondent’s own disciplinary procedures and it is notable that the word “warning” was not mentioned once in the entire communication. Although Mr X stated in evidence that the Complainant was on notice from this correspondence that his position could be at risk, it is worth quoting the relevant section of the email to examine if this was the case:

Second in the meeting, but equally critical to your future with NAME OF RESPONDENT, we discussed your recent Slack messages to Mr P and other colleagues in the team. I have reviewed the messages, and your communications around issues such as opportunity assignments and office time are not acceptable or professional. Ms Z and I appreciate that you seem to have considered the tone of these communications and intend to make positive changes. In our meeting yesterday, we made it very clear that these types of communications are unacceptable and not in keeping with the Respondent's culture and values. We expect, and you appear to be committed to, immediate improvement in your tone and reactions and future accountability for professional behaviour. 

While the Respondent highlighted that the words “equally critical to your future” should have made it clear to the Complainant that his role would be in jeopardy if his conduct did not improve, I do not accept that this is the case and believe that any reasonable person would understand from reading the above paragraph that the Complainant should modify his communication style if he wanted to progress in his career with the Respondent. Moreover, I find that if his behaviour was going to put his role with the company at risk, this should have been explicitly stated and made clear to him. I also noted that there was an attachment to the aforementioned two page mail of 8 May and that this document contained 26 points which purported to clearly define the Complainant’s role and the expectations of the Respondent for the new position he had assumed. It is most striking however that only one of these 26 points addressed the Complainant’s alleged negative bullying behaviour, namely “Absolutely do not engage in aggressive or profane behaviours that could be deemed offensive to colleagues, leadership or customers“.  I believe that if the Respondent’s witnesses Mr X and Ms Z were as alarmed about the Complainant’s behaviour as they claimed to be, these concerns should have been highlighted repeatedly both in the two page email of 8 May, as well as in the aforementioned document attached to that mail, and any reasonable employer would have made it abundantly clear that his position was at risk if his behaviours did not improve. 

It was also notable that there was no suggestion or reference made to any alleged breach of the Respondent’s bullying and harassment policy at this 7 May meeting or in the correspondence that followed from it. In addition, it is worth highlighting that there was no training given to the Complainant on the Respondent’s bullying and harassment policy at any stage over the course of his employment after it was given to him as part of the employee handbook when he started. Specifically, I would have expected that, given the importance apparently attached to it by the Respondent’s witnesses, the policy would have been highlighted to the Complainant at some stage between when he received it in December 2016 and when he was next made aware of it on 6 June 2019, the day he was suspended for alleged bullying and harassment.    

Having reviewed both the findings of the investigation which followed the suspension and the documentation provided, I am satisfied that, while the Complainant did engage in some inappropriate behaviours in his interactions with his two colleagues who made a complaint about him, these fell a long way short of warranting his dismissal in the circumstances. Specifically, and crucially, in my view, I saw little difference between the nature of the Complainant’s comments and messages to Mr P prior to the 7 May meeting, and the comments made between 7 May and 6 June, which resulted in his suspension, and notably occurred during the period of Ramadan, which the Complainant as a practicing Muslim was observing, but the Respondent made no allowances for. I cannot therefore understand why, if Mr X was so concerned about the Complainant’s behaviours, which, as I have noted, did not substantially change in the period between the 7 May meeting and his suspension on 6 June, he failed to give the Complainant a warning in line with the Respondent’s disciplinary procedures following the 7 May meeting but chose to dismiss him for similar behaviours and comments he engaged in between then and 6 June, when he was suspended from his employment. Any reasonable employer would have tried to understand in the first instance if the employee’s observance of Ramadan was causing a difficulty for him and would certainly not have made a decision to dismiss an employee on the basis of his conduct over a period of less than a month, from 7 May to 6 June, especially when such behaviours were largely similar to those that had not even justified a formal verbal warning less than one month beforehand.  

In addition, I further note that it is impossible to discern what specific comments or behaviours caused Mr X to make his finding of serious misconduct because the termination letter issued on 17 September 2019 only contained one example of alleged bullying behaviour, which was not particularly specific, namely that the Complainant left a voice message where he “said something likeeither you do something or I will do something about it” and furthermore there is no clear indication that his behaviour worsened significantly after the 7 May meeting.  It is also apparent from the termination letter that Mr X gave inordinate weight to the informal discussions had with the Complainant on 7 May and the subsequent written communications as well as other undated or undocumented discussions, which, as I have highlighted above, did not constitute warnings in accordance with the Respondent’s disciplinary procedure. Specifically, the termination letter stated: 

Taking everything into consideration, including the informal discussion and confirming emails on May 7-15 and multiple opportunities you were given to improve your behaviours, I believe that your behaviour toward Mr P amounts to very serious misconduct. 

This over reliance placed by Mr X on informal discussions, instead of issuing the Complainant with a warning in accordance with the Respondent’s disciplinary procedure, was also apparent from his direct evidence. Specifically, he stated that numerous conversations were had with the Complainant to address his alleged behavioural issues and he gave evidence of one occasion where he deliberately engineered a situation to get a taxi with the Complainant back to the office from a meeting in a hotel because he wanted to talk to him about his behaviours.  The failure to contemplate issuing a formal verbal, written or final written warning to the Complainant at any stage prior to his termination is incomprehensible and was also notably evident in the disciplinary outcome letter, where Mr X stated that although he considered demotion or redeployment as alternative sanctions to dismissal, he did not say that he considered issuing a warning of any type, in line with the disciplinary procedures in the handbook.   

The extraordinary suggestion of Mr X that the correspondence which followed from the informal discussion with the Complainant on 7 May should be considered a warning was also apparently shared by the Appeals Officer, as is evident from his outcome letter. Specifically, the Appeals Officer stated that “I cannot accept that you were not appropriately warned” and that the Complainant, following a number of conversations with both Mr X, Ms Z as well as Mr P, “should have known that there would be very serious ramifications for you”.  In the first instance, I find the assertion that the Complainant was “appropriately warned” is astonishing given that he had not received any warning whatsoever in line with the Respondent’s own disciplinary procedures. In addition, I am at a loss to understand how the Complainant “should have known that there would be very serious ramifications” because, as I have highlighted above, it was never clearly communicated to him at any stage prior to his dismissal that a failure to improve his conduct could result in the termination of his employment.

In light of the foregoing, I find that the Complainant’s dismissal was substantively unfair as well as wholly disproportionate and that no reasonable employer would have made a decision to dismiss him in the circumstances.

Having decided that the dismissal was substantively unfair, I must also examine if it was procedurally fair prior to making a decision on the overall reasonableness of the conduct of the employer in relation to the dismissal.

Despite Mr X’s assertion that he had considerable experience in people management and was well aware of the importance of fair procedures, I found that his actions showed little evidence of this. Specifically, I noted in the first instance that, although he was present at the aforementioned meeting of 7 May where he allegedly admonished the Complainant for his behaviours, he also made the decision to chair the disciplinary hearing. In addition, he accepted, when questioned by me at the hearing, that he ultimately made the decision to suspend the Complainant and it is also worth highlighting that he was present at the telephone conference call when the Complainant was informed of his suspension. What was even more concerning from a procedural fairness point of view was an email from Ms Z of 4 June 2019 stating that both she as well as Mr X and Mr P had been engaging for a number of weeks in attempts to manage the Complainant’s behaviours. The involvement of Mr X in these efforts was supported by his own evidence at the hearing, where he highlighted that numerous informal attempts were made to discuss the Complainant’s alleged behavioural issues. Specifically, as outlined above, he gave evidence of one occasion where he deliberately engineered a situation to get a taxi with the Complainant back to the office from a meeting in a hotel because he wanted to talk to him about his behaviours. The repeated presence of Ms Z throughout the process, namely at the meeting of 7 May, on the telephone call when the Complainant was suspended and again at the disciplinary hearing was also unsatisfactory from a procedural fairness point of view.  

In light of the foregoing, I am satisfied that there was overwhelming evidence to suggest that Mr X was heavily involved in attempts to manage the Complainant’s behaviours and could not have been seen to be independent in his capacity as the decision maker of the disciplinary outcome. This lack of independence of the person who made the decision to terminate the Complainant’s employment therefore rendered the dismissal procedurally unfair.

Finally, I should highlight that, despite both Mr X’s and Ms Z’s repeated references to the culture and values of the Respondent as well the importance of respect, the lack of decency, humanity and dignity shown to the Complainant was deplorable. Specifically, I noted that the Complainant, a frequently promoted, top performer, was suspended via a phone call and was informed both that his employment was being terminated and his appeal was unsuccessful via email instead of being afforded the basic human courtesy of a face to face meeting in each instance. Moreover, no evidence was provided of any support or engagement by the Respondent throughout the suspension period which exceeded three months. While the callous nature of the Complainant’s treatment and the disregard shown to him was insignificant in terms of my ultimate findings, it is nonetheless indicative of the treatment of him throughout the process, where the Respondent ignored the procedures in their own handbook and is completely at odds with the alleged values and culture espoused by their witnesses.

As I have found that the dismissal was both substantively and procedurally unfair, I find that the Complainant was unfair dismissed.

CA-00035213-001:

I have found that the Complainant was unfairly dismissed for the reasons set out above.

THE LAW

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(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, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(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,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

REMEDY

While the Complainant sought to be re-instated in his role, I note that he contributed to his dismissal via his conduct and am satisfied on the basis of the evidence presented that the working relationship between the parties has irretrievably broken down. I do not therefore find that re-instatement is the most appropriate remedy.

Accordingly, I have decided that compensation should be awarded.

I must therefore calculate the Complainant’s remuneration on the basis of the written submissions provided to me by both parties after the hearing, prior to both making an assessment of the financial loss and a decision on the compensation to be awarded.

CALCULATION OF REMUNERATION

While the Respondent’s asserted in their post hearing submissions that the Complainant’s annual remuneration, when calculated in accordance with regulations made under section 17 of the Act was €219,466, the Complainant stated that it should be €306,492. Having reviewed the submissions of the parties and given both the opportunity to reply to one another, it is clear that the difference between the two depends on the timing of the significant bonus payments which the Complainant received.

In making a decision on which, if any, elements of the bonus payments to include, I must have regard to the Regulations made under section 17 of the Act, which essentially differentiate between an employee whose remuneration does not vary by reference to the amount of work done by him (as provided for in Regulation 4) and an employee whose remuneration does so vary (as provided for in Regulation 7). It is clear that Regulation 7 applies to the Complainant because his remuneration varied due to the payment to him of commissions from time to time. Specifically, Regulation 7(a) provides that the Complainant’s weekly remuneration must be calculated:

“…by dividing the amount of the remuneration to be taken into account in accordance with paragraph (b) of this Regulation by the number of hours worked in the period of 26 weeks mentioned in the said paragraph (b) and multiplying the resulting amount by the normal number of hours for which, at the date of the dismissal of the employee, an employee in the relevant employment was required to work in each week.” 

Regulation 7(b) then provides that the remuneration to be taken into account for the purposes of paragraph (a) above is: 

“…the total remuneration paid to the employee concerned in respect of the employment concerned for all the hours worked by the employee in the employment in the period of 26 weeks that ended 13 weeks before the date on which the employee was dismissed, adjusted in respect of any variations in the rates of pay which became operative during the period of 13 weeks ending on the date of dismissal of the employee.” 

The Respondent asserted that Regulation 7(b) provides that the remuneration to be taken into account for the purposes of the requisite calculation is the remuneration paid to the employee for “all the hours worked by the employee” in the “period of 26 weeks” or the Lookback Period and that the Minister therefore clearly intended that the relevant remuneration must relate directly to the employee’s work during the Lookback Period. The Complainant on the other hand submitted that the correct and reasonable interpretation of Regulation 7(b) is that the remuneration to be taken into account is the total remuneration actually ‘’paid’’ to him in the 26-week period and not the remuneration that may have been “earned” by him during the Lookback Period.

While I recognise that it is not abundantly clear, I am satisfied, from my review of the Regulation, that the intention of the relevant Minister was that it is the remuneration “earned” in the Lookback Period and not the amount “paid” that is relevant for the purposes of the calculation.

Regulation 7(b) is then read in conjunction with Regulation 9 which provides that: 

“Where, in a particular week, an employee qualifies for a payment of a bonus, pay allowance or commission which relates to work the whole or part of which was not done in that particular week, the whole or the appropriate proportionate part of the payment as the case may be, shall, for the purposes of Regulations 4 and 7(b) of these Regulations, be disregarded in relation to that particular week and shall for those purposes, be taken into account in relation to any week in which any of the work was done.”   

The Respondent suggested that Regulation 6 is also relevant and provides that: 

“For the purpose of Regulations 5 and 7(b) of these Regulations, any week during which the employee concerned did not work shall be disregarded and the latest week before the period of 26 weeks mentioned in the said Regulation 5 or 7(b), as the case may be, of these Regulations or before a week taken into account under this Regulation, as may be appropriate, shall be taken into account instead of a week during which the employee did not work as aforesaid.” 

The Lookback Period 

The Respondent suggested that the relevant lookback period for the purposes of Regulation 7(b) is 6 December 2018 to 6 June 2019. While counting 13 weeks back from the Termination Date provides a date of 17 June 2019, the Complainant did not carry out work between 7 June and 17 June 2019 inclusive, as he was suspended. Therefore, applying Regulation 6 to disregard that period of suspension, the Respondent suggested that the end date of the Lookback Period is 6 June 2019 and, as such, the commencement of the Lookback Period is 6 December 2018, which I found to be reasonable. 

Regulation 9 

Regulation 9 provides that where the Complainant receives a commission payment in a particular week which relates to work where the whole of that work or part of that work was not done in that particular week then the whole or the appropriate proportionate part of the payment (as the case may be) shall be disregarded in relation to that particular week. The payment can then be taken into account in relation to any week in which any of the work was done. 

The Respondent asserted that if the Complainant received a commission payment during the Lookback Period but the work that he carried out to achieve that payment was carried out and completed prior to the Lookback Period, that payment must be disregarded such that it is not included in the calculation of weekly remuneration for the purposes of the Regulations. It was further asserted that if the Complainant carried out any portion of that work within the Lookback Period, a commission payment representing that portion of the total commission payment can be included in the calculation. The Complainant asserted however that the intention of Regulation 9 was not to apportion work done within the 26 week period and that the only reasonable interpretation of the inclusion of the words ‘’any of’’ in the Regulation, is that once any of the work was done in a week, the full amount of the payment and not an apportioned part of it must be taken into account. In response to this assertion, the Respondent highlighted that Regulation 9 it provides that if “the whole or part of” (emphasis added) the relevant work was not done in the “particular week” in which the payment is made, the “whole or theproportionate part of the payment as the case may be” (emphasis added) shall be disregarded in relation to that “particular week” for the purposes of Regulation 7(b). 

I am satisfied, as the Respondent asserts, that Regulation 7(b) envisages that the relevant payment must be apportioned on the basis of the amount of work done in the week in which the payment is made. 

Given that I have found it is necessary to determine the portion of that work carried out in the Lookback Period so that the relevant portion of the total commission payment can be determined, a commencement date for the relevant work and a closing date must be identified. The Respondent asserted that the closing date is straightforward as it simply occurs when the customer signs the order form and the transaction is marked as ‘closed’ on the Respondent’s booking system. Identifying the commencement date of a transaction is also straightforward where the commission payment relates to the first or only transaction for a new client as it is clear when the new account and ensuing Transaction are opened on the Respondent’s booking system. However, the Respondent highlighted that identifying the commencement date of a transaction is less clear where the work relating to a commission payment is carried out during the course of a relationship with an existing client. This is because that work could reasonably relate to a number of distinct points in the life of the client account. The Respondent therefore asserted that the commencement date of the work for the purposes of Regulation 9 could reasonably be determined as being one of three particular dates, as follows: 

(i) the date the client account first opened as that is the point at which the Respondent’s sales person begins developing the client relationship in earnest;

(ii) the commencement date of the fiscal year in which the commission payment is made as the payment can only be earned and paid to an employee under the sales incentive compensation plan that applies in the fiscal year that the payment is made; or

(iii) the Opportunity Creation Date as this is the date that the opportunity to secure a customer subscription is created for the relevant Transaction on the Respondent’s Salesforce booking system which then leads to a commission payment. 

I note that the Respondent has calculated the weekly remuneration on the basis that the appropriate commencement date for each of the transactions to which a bonus applied is option (iii), namely the Opportunity Creation Date, which I find to be wholly reasonable, and note that it is also the most favourable approach to the Complainant. 

While I noted the Complainant’s assertion that the Respondent’s calculation of the remuneration excludes any bonuses due on transactions opened and worked on by the Complainant in the Lookback period but not necessarily completed and that it is likely that another employee may have ultimately  benefited from a bonus as a result of work done on a sale by the Complainant, I find that there is no provision for the inclusion of such bonuses on such transactions in the Regulations. 

In light of the foregoing, I find that the Respondent’s calculation of the weekly remuneration, namely €4,220.50 (€219,466 per annum), is reasonable.

CALCULATION OF FINANCIAL LOSS

In making a determination of the financial loss incurred by the Complainant, I note that the Complainant was out of work from the date of his dismissal, 17 September 2019, until 17 July 2021, that his new role is at a much reduced salary and his loss is ongoing. While the overall loss attributable to his dismissal therefore exceeds 104 weeks remuneration, namely €438,932, this is the maximum amount I may award in accordance with section 7 (1) (c) (i).

CALCULATION OF AWARD

For the purposes of calculating the award, I must have regard to s. 7 (2) (a), (b), (c) (d), (e) and (f) of the Act, outlined above. Specifically, I must consider the conduct of the Respondent as well as the Complainant in relation to the dismissal and must also have regard to the efforts made by the Complainant to mitigate his financial loss.

I note firstly both the substantive and procedural unfairness of the dismissal, as outlined in the foregoing analysis above, and find that the Respondent contributed significantly to the Complainant’s financial loss given the nature of his dismissal and the reasons behind it.  I must recognise however that, while the decision to dismiss was disproportionate, the Complainant did, through his inappropriate behaviours, contribute somewhat to the termination of his employment.

While I also noted the Respondent’s suggestion that the Complainant should have found alternative employment much earlier than July 2021, given his previous experience as well as the current buoyant job market, the Complainant asserted that the reasons behind his dismissal made it very difficult for him to secure a new position and highlighted that he only found his current role when he removed his employment history with the Respondent from his job applications. Given the conflict in evidence between the parties on this particular issue, I note the decision of the Court of Appeal in England where it was stated that expert tribunals, such as the WRC, “do not sit in blinkers and are entitled to make use of their own knowledge and experience in the industrial field”. (London Underground v Edwards (No.2) [1998] IRLR 364 – Applied in Benedict McGowan and ors v The Labour Court and Ors [2010] 21 ELR 277). Having regard to this decision, as well as my own experience as a human resources professional, I am of the view that it would have been extremely difficult for the Complainant to have found alternative employment and am not surprised that it took him 22 months to find a new role, given the nature of his dismissal. Specifically, I recognise that the Complainant earned a very substantial remuneration package, that the Respondent operates in a niche sector in a city in a very small country where both employers and recruitment agencies are easily known to one another, that job seekers are invariably asked in interviews why they left their most recent employment and the obvious reluctance of prospective employers to offer the Complainant any position, let alone a well paid one, when being made aware of the reasons behind the termination of his employment, either through word of mouth or when informed at interview. I also note that, while the Complainant made extensive efforts to mitigate his loss after his appeal outcome was issued in March 2020, his efforts at seeking alternative employment prior to this were rather feeble, although as I have highlighted above, his job search was always going to be very difficult and challenging given the nature of his dismissal and the reasons behind it.

In light of the foregoing, I find that an award of €329,199, namely 75% of the overall financial loss, is just and equitable in respect of the unfair dismissal.

CA-00035213-002:

This complaint was withdrawn.

Misconduct; dismissal;