UDD2246

1.Appeal of Adjudication Officer Decision No’s: ADJ-00005832, CA-00008066-002, ADJ-00011322, CA-00014812-001.

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 18 December 2018 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. Labour Court hearings took place on 11 July 2022. The following is the Determination of the Court:




DETERMINATION:

This is an appeal by Dermot O’ Driscoll (Complainant) against decision ADJ-00005832 of an Adjudication Officer in his complaint against his then employer Cork Opera House DAC (the Respondent). The complaint was made pursuant to the Unfair Dismissals Act 1977 (the Act). The Adjudication Officer held that complaint is not well founded. There is a linked case MN/19/2.

Background

The Complainant was employed by the Respondent as a Financial Controller from the 25^thAugust 2010 to the 9^thSeptember 2016 when his employment came to an end. The Complainant claims that he was unfairly dismissed by his employer on the 9th September 2016. The Respondent disputes that there was a dismissal and submits that the Complainant resigned. The Complainant lodged his complaint with the WRC on the 8^thNovember 2016. As dismissal is in dispute it falls to the Complainant in the first instance to establish that a dismissal as defined by the Act occurred.

The Complainant was not represented and as he wished to give sworn evidence to the Court, he was sworn in at the commencement of the hearing.

Preliminary issue

Ms O’ Flynn BL on behalf of theRespondent raised a preliminary issue. The Respondent submitted that the Court did not have jurisdiction to enquire into this complaint as the issues had already been considered under the Complainants Protected Disclosure complaint. Ms O Flynn BL on behalf of the Respondent opened to the Court the complaint form submitted by the Complainant and in particular the text set out under the heading Complaint Specific Details or statement. Ms O Flynn drew the Courts attention to a section of the narrative where the Complainant states “I have not resigned, and I have stated that I have not resigned. I was unfairly dismissed for making a protected disclosure protected by the 2014 protected disclosures Act.”Ms O Flynn BL submitted that the Adjudication officer having found that the Complainant had not made a protected disclosure should not have proceeded to hear the unfair dismissals complaint.

The Complainant submitted that the complaint were different and drew the Courts attention to the form where under the heading of unfair dismissal and reason given for dismissal he had stated“ I was dismissed under the guise that I resigned for not signing a letter of undertaking”.

The Court having reviewed the complaint form accepts that it is quite confusing in respect of what is being alleged under both the Protected Disclosures Act and the Unfair Dismissal Act, the Court notes that at the hearing of the Protected Disclosure Act case the Complainant particularised his complaint to three alleged protected disclosures and that dismissal was not a penalisation that was identified at that hearing.

The Court having reviewed the papers and considered the submissions on this issue concluded that in this case fair procedure was best served by hearing the substantive case and proceeded to do so.

Summary of submission and evidence of the Complainant

The Complainant commenced work with the Respondent on the 25th August 2010 but did not receive a contract of employment until 3^rdJune 2015. The Complainant had a number of concerns about the contract and submitted a complaint to the WRC. The complaint was heard by an Adjudication Officer on the 19^thFebruary 2016. Six days after the hearing the Complainant received a letter dated 25/2/2016 from the Respondent stating that in his oral and written submissions at the WRC he had made allegation against the previous CEO of “endeavouring to misrepresent financial reporting” and that the Finance committee had determined that the issue must be fully investigated. The letter went on to say that if on reflection he felt he could not substantiate the allegations he could take the opportunity to fully retract same otherwise he needed to set out in full in writing the basis for the allegations he had made and email same to the Respondent by 1^stMarch 2016. The letter also advised that he should consider seeking legal advice. The Complainant stated that he replied that day by email including relevant documentation. By further email of the 1^stMarch 2016 he sent more clarifications and expressed the view that he believed he had stood up for the Respondent but was now facing another investigation.

The Complainant was invited to a meeting on the 10^thMarch 2016 with Ms O’ Sullivan and Mr Healy to investigate his allegation against the previous CEO of “endeavouring to misrepresent financial reporting”. The letter of invitation indicated that it was a formal investigation, and he was provided with a copy of the Respondent’s Grievance and Disciplinary policies. The Complainant submitted that he responded acknowledging that he would attend and submitting further documentation.

By email of 16^thMarch 2016, he was provided with a copy of the record of the meeting. The Complainant submitted a number of changes to the record of the meeting and a further meeting to clarify same, took place on 31^stMarch 2016. The Complainant stated that he was provided with a record of that meeting but again he had some issue with the record and had submitted amendments. He received a letter on 20^thApril 2016 acknowledging his email of 12^thApril and confirming that they were proceeding with the investigation. The investigation committee issued their report and provided the Complainant with a copy of same on the 25^thMay 2016. The Complainant was suspended with pay from that date and by email of the same date responded rejecting the findings of the investigators and requesting in writing the reason for his suspension. By email of the 26^thMay 2016 the Complainants suspension from work was confirmed in writing. The email stated that the suspension was pending the conclusion of a disciplinary hearing.

By letter of 7^thJune 2016, the Complainant was invited to a disciplinary meeting on the 16^thJune 2016. The letter set out three allegations:

• 1) that the allegation he made, and his conduct thereafter demonstrated an inability to exercise reasonable judgement and that the allegation he made was unfounded, vexatious and malicious and constituted gross misconduct.

  2)that he disregarded a previous caution that he had received which raised concerns about his ability to fulfil his role of Financial Controller and that this constituted insubordination and gross misconduct.

  3) that his actions in attempting to reopen a protected disclosure constituted a failure to accept decision and instruction of management and constituted insubordination and gross misconduct.

By letter of the 1^stJuly 2016 the Respondent replied and responded to the issues raised advising the Complainant that if he wished to make further submission same should be submitted no later than 5^thJuly 2016. On the 4^thJuly 2016 the Complainant made a further submission.

The disciplinary committee issued their findings and recommendations on the 8^thJuly 2016. The committee upheld the three complaints of gross misconduct, two of which included insubordination. The committee came to the conclusion that the appropriate sanction for gross misconduct was dismissal. However, having regard to the contribution that the Complainant had made to the organisation and the fact that he had no previous formal disciplinary sanction imposed they mitigated the decision to dismiss. The sanction to be imposed instead, was a final written warning, a requirement that the Complainant withdraw his allegations against the former CEO and provide a written undertaking that he would not under any circumstances repeat the allegation and that he provides the required written undertaking and refrain from using grave, inflammatory, unwarranted, misguided and or loaded language. It also required that he confirm in writing that he accepts without reservation the December 2015 findings of the company regarding his purported protected disclosure which he had not appealed at the time. Finally, that he would work under supervision for a period of twelve months.

The disciplinary board further recommended that if the Complainant accepted the findings and the recommendations his suspension should be lifted within 48 hours. By letter of the 15 July 2016 the Complainant appealed the decision and set out in writing his reasons for appealing. An appeal hearing was scheduled for the 26^thJuly 2016. The appeal board issued their decision on the 10^thAugust 2016 upholding the decision of the disciplinary board.

The Complainant in his sworn evidence to the Court stated that he did not accept the submission by the Respondent that he had resigned. The Respondent had dismissed him and issued him with his P45. He felt there was a number of issues with the process including the fact that he had made the statement at a WRC hearing and therefore no consequences should have arisen for him. He also felt that he was not allowed to submit questions to the investigators who were his accusers. The Complainant submitted that he could not sign the required letter of undertakings as he believed if he did it would prevent him from taking cases down the line.

The Complainant stated that he wrote an alternative letter to the one issued by the Respondent which he felt met the requirements, but they would not accept same, and on that basis, he believes he was refused natural justice. The Complainant submitted that as there were issues with his contract the disciplinary procedure did not apply to him. He felt that the letter of undertaking that he was being asked to sign was contrary to his statutory rights but could have been resolved by adding in words like “except when required by law”. He confirmed to the Court that he had never sought to have those, or similar words inserted into the letter of undertaking. The Complainant submitted that his employment was terminated while he was on pre-approved annual leave. He stated that by letter of the 22^ndSeptember 2016 he had clarified that he had not resigned and that he wanted to return to work. The Complainant stated that he was relying on the definition of the word ‘resignation’ set out in the Oxford and Cambridge dictionaries to support his contention that he did not resign. The Complainant submitted that he was two years and two weeks away from retirement when he was dismissed, and that his losses arising from dismissal was €131,950. In the intervening period he had unsuccessfully applied for 78 jobs.

Under cross examination by Ms O’ Flynn BL the Complainant confirmed that he held a very Senior post in the organisation and was part of the top-level management team. He accepted that the statement he made was a very serious statement. It was put to him that when he had initially made the statement about the previous CEO it was investigated and that he was provided with evidence to show that what he was saying was not true, but he persisted with making the allegation. The Complainant sated that he did not accept that he had been provided with evidence that it was not true. It was put to the Complainant that his statement accusing the previous CEO of “endeavouring to misrepresent financial reportingwas tantamount to accusing her of fraud. He did not accept that. It was put to the Complainant that his employment came to an end when he declined to accept the sanction handed down by the disciplinary panel. The Complainant stated that he did not accept that it was necessary for him to be supervised or to give the undertaking and that he had been dismissed for not signing the letter of undertaking. The Complainant accepted that at each stage of the process he was afforded the opportunity to have legal representation, but he chose not to have representation.

It was put by Ms O’ Flynn BL to the Complainant that it was open to him to return to work from the middle of July 2016 and that he had been afforded a number of opportunities to sign the letter of undertaking but the first time he put it in writing that he would not sign the letter of undertaking was 30^thAugust 2016. Ms O’ Flynn put it to the Complainant that in a letter from Mr Wallace dated 8^thSeptember 2016 he was afforded a fourth and final opportunity to sign the letter of undertaking, but he still declined to do so. It was further put to him that he had signed the letter on the 8^thof September 2016 he could have a returned to work. The Complainant accepted that.

The Complainant submitted to the Court that he had not resigned and that the letter of undertaking that he was being asked to sign was unreasonable as it would prevent him from taking cases against the Respondent in the future.

Summary of submission and evidence of the Complainant

Ms O Flynn BL submitted on behalf of the Respondent that the Respondent had tried to address all the issues that the Complainant had raised. They had engaged external consultants, carried out investigation but the Complainant had refused to accept any outcome that did not coincide with his point of view. The Complainant held a very senior post in the organisation as Financial Controller. The Respondent as a funded organisation took very seriously any allegations of impropriety particularly when they were being made by their Financial Controller. Even after the Respondent investigated his allegations and found no evidence to support the allegations the Complainant continued to make the allegations. The Complainant had no regard or consideration for the reputation of the people he was making the unfounded allegations against. The Complainant had made an alleged protected disclosure in November 2015, it was found not to be a protected disclosure, the Complainant did not appeal that decision, yet he keeps on referring to his protected disclosure refusing to accept the outcome of the investigation.

In respect of the allegation against the previous CEO at the WRC hearing. The WRC hearing was in respect of an alleged breach of the Complainants terms and conditions of employment. The Respondent only had sight of his submission on the day of the hearing and flagged to the Complainant and the Adjudication Officer that he was making an unsubstantiated allegation not in any way related to the case before the Adjudication in respect of a previous CEO of the Respondent. The Complainant was afforded an opportunity to remove that allegation and not to proceed with that element of his submission. He was advised that if he did proceed with that particular statement remaining in his submission the Board would have to be advised. The Complainant chose to proceed and make the statement even though it had no relevance to the case before the Adjudication Officer.

Following on from the hearing the issue was brought to the attention of the Board who appointed two board members to investigate. A detailed investigation was carried out. The Complainant was given ample opportunity to make what ever submission he wished to make. Unfortunately, he used the opportunity to re state the allegations and revisit other issues that had previously been investigated and addressed. At all times, the Complainant was advised that he could be accompanied at the various meetings by his legal representative, but he chose not to be so represented.

The investigators concluded that the Complainant had a case to answer and that the issue warranted referral to the disciplinary process. The Board appointed a disciplinary board, and the Complainant was advised of the allegations against him and provided with an opportunity to make written and oral submissions to the disciplinary board. The Disciplinary Board upheld the allegations of gross misconduct and insubordination. Taking into account his previous work history and recognising the contribution he had made to the organisation during a difficult period the board while acknowledging the behaviour warranted dismissal decided instead that the appropriate sanction was a final written warning, twelve months supervision on the job and the requirement to sign a letter of undertaking that he would not repeat the allegation or try and revisit issues that had already been investigated and outcomes issued.

The Complainant lodged an appeal, but it was not upheld. The Respondent gave the Complainant numerous opportunities in the first instance to withdraw the comments he had made which he refused to do, and then to sign the letter of undertaking. By letter of the 30^thAugust the Complainant indicated for the first time in writing that he would not be signing the letter. Even then he was still given further opportunities to sign the letter but declined to do so. The Respondent took his continuing refusal to sign the letter as his resignation from the job but not until he had been afforded numerous opportunities to sign it.

Mr Wallace who was Chairman of the Bord from 2008 to 2017 in his evidence to the Court set out the structure of the organisation and how the Complainant came to work there. In Autumn 2015 the Complainant had raised an issue of fraudulent accounting. This allegation was investigated, and the outcome was that no further action was required. The Complainant also made a protected disclosure which was investigated, and a report issued in December 2015 stating no issues arose. The Complainant did not appeal that decision. Mr Wallace stated that he understood at that time that the Complainant was happy that both issues had concluded. The Respondent at the time had come out of an audit with a clean bill of health. The Complainant had the opportunity to raise any concerns with the Auditor, but no issues were raised with the Auditor by him.

It was disconcerting then at the WRC to see that the Complainant had included in his submission a statement alleging that the previous CEO had been party to fraudulent accounting. He felt he had to bring it to the Boards attention.

Mr Wallace confirmed that he was part of the appeal process and that in respect of his appeal the Complainant was given an opportunity to make submissions and have representation at the meeting, but he chose not to have representation. The appeal board considered all the evidence he put forward in respect of the three allegations. The Complainant in his submission was stating that the disciplinary procedure did not apply to him and raising issues about the definitions of words and citing the Oxford and Cambridge dictionaries. The appeal board took account of questions he raised and set out their response to same in a written report. Mr Wallace stated that prior to this issue he believed he had a great working relationship with the Complainant. Mr Wallace stated that the appeals board agreed that the Complainant’s actions constituted gross misconduct and insubordination. The appeals board felt that the recommendation by the disciplinary board was reasonable because if the Complaint was coming back to work other people had to be protected from him making unsubstantiated allegations against them. He confirmed that the issues did raise some concerns about the Complainant’s judgment and how he calibrated risk. Mr Wallace stated that he wanted the Complainant to come back to work because when he focussed, he was really good at his job. Mr Wallace stated that prior to the final deadline given to the Complainant he had offered to meet with him as he was concerned that the Complainant did not understand the seriousness of the situation. The Complainant did not take him up on the offer of a meeting The letter of the 9^thSeptember 2014 was sent notifying him that they were treating his failure to comply as his resignation. Mr Wallace stated that at that stage the Board felt it had no alternative as the Complainant held a Senior Management position which they could not leave unfilled indefinitely.

Under cross examination from the Complainant Mr Wallace confirmed that he did not follow up the letter of the 9^thSeptember where he had indicated he was available to meet the Complainant with a phone call as he did not think it would be appropriate. In response to a question from the Complainant Mr Wallace stated that he did not dismiss the Complainant. It was put to Mr Wallace by the Complainant that the Oxford dictionary definition of resignation was “give notice to employer of ending of job” and that in this case that had not happened. Mr Wallace stated that it was the view of the board that his failure to sign the letter of undertaking was him resigning his post. Mr Wallace accepted that by letter of the 22^ndSeptember 2016 the Complainant had written to say that he had not resigned. In response to a question from the Complainant Mr Wallace stated that he could not accept that the alternative letter of undertaking drafted by the Complainant came anywhere near to meeting the requirements of the Respondent.

Ms O’ Flynn BL submitted that the Complainants employment was terminated by way of resignation. It was his decision not to return to work. The option to return to work was available to him from mid- July and he was asked on four occasions to return to work but he refused to do so, the wording of the undertaking required by the Respondent was entirely reasonable and arose from the previous actions of the Complainant. The Respondent’s position is that there was no dismissal.

The Law

Section 1 of the Act defines dismissal in the following manner

“dismissal”, in relation to an employee, means—

• (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

• 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
  
  (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
  
  • (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
    (b) the conduct of the employee,
    (c) the redundancy of the employee, and
    (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Issue for the Court

Dismissal as a fact is in dispute and therefore it is for the Complainant to establish that a dismissal occurred. If that is established, it is then for the Respondent to demonstrate that in the circumstances of this case dismissal was fair as there were substantial grounds justifying dismissal.

Discussion

Having concluded as set out above that in this case fair procedure was best served by hearing the substantive case, the Court considered whether or not a resignation had occurred. The Complainant had citied the definition of resignation as contained in the Oxford English dictionary and that is set out above. In the course of the hearing the Court had drawn the party’s attention to wording inRedmond and Dismissal[ para.22.22] in respect of dismissal which states “Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally, it is safe to conclude the employee has resigned”.

In the case to hand the Complainant did not inform the Respondent that he was resigning, nor can it be said that he used unambiguous words of resignation. The Court notes the position of the Respondent that by his actions i.e., failure to return to work despite being given numerous opportunities to do so and by his letter of 30^thAugust 2016 where he sets out that he would not sign the letter of undertaking then defacto he had resigned. However, the Complainants employment.

“dismissal”, in relation to an employee, means—

• (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

The Court determines that the Complainant did not resign but was in fact dismissed.

The next issue the Court considered was whether as provided for in the Act there were substantial grounds justifying dismissal. The Court for the following reasons finds that there were substantial grounds justifying dismissal. The Complainant was a Senior member of the management team as Financial Controller and his words carried weight. The Respondent thoroughly investigated every allegation he made, and none were upheld. The Complainant continued to repeat the allegations after the investigations had concluded that they were without foundation. The Complainant as a Senior Manager had no regard to the impact his words would have on the reputation of others. The Complainant was given numerous opportunities to retract the allegations and at a later stage to give an undertaking not to repeat them but refused to do so. The Complainant was found guilty of gross misconduct and insubordination which under the Respondent’s policies warranted dismissal. The sanction was mitigated to a final written warning, the requirement to sign a letter of undertaking and to be supervised on the job for twelve months. The Complainant refused to comply with the requirements of that sanction. Taking all of the above into consideration the Court determines that the Complainant was fairly dismissed as there were substantive grounds justifying the dismissal. The Complainants appeal fails. The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CN	______________________
4 August 2022	Deputy Chairman