Complainant

Respondent

Parties

Alan Keane

Cummer Coaches Ltd

Representatives

Thomas O'Connor National Bus & Rail Union

Anna Butler Peninsula Group Limited

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-00043257-001

25/03/2021

The Complainant commenced employment as a driver with the Respondent on 1 August 2018 and was paid an average of €700 per week. His employment was terminated on the grounds of gross misconduct on 13 October 2020. He is asserting that the dismissal was unfair.

The Complainant was employed as a coach driver with the Respondent and typically worked four days on and two days off. He had an excellent work record with the Respondent and his disciplinary record was clean. Having been laid off in March 2020 as a result of the Covid pandemic, the Complainant was asked to return to work on September 22, 2020.

On 21 September, the Complainant experienced difficulties with his mobile phone and went into his local shop where he was advised to get a SIM replacement. Having replaced the SIM, the Complainant no longer had any issue with his phone. He subsequently contacted the Transport Manager who informed him that he had received a very abusive text message from him in the early hours of 21 September. The Complainant denied having sent any such message and inquired as to what it said. The Transport Manager then forwarded to him a copy of the message and the Complainant was astonished to read the content of the message given that he had not sent it.

The Transport Manager then informed the Complainant that he should not return to work until such time as he investigated the matter. Following this phone conversation, the Complainant went to his local Garda station where he was advised that the Gardai could not investigate because it was not a criminal matter. The Complainant then met the Transport Manager the following day as part of an investigation into the matter but did not receive any minutes of the meeting. He subsequently visited the Garda station again but did not receive a satisfactory response. Although he was initially invited to attend a disciplinary meeting with the Operations Director on 30 September, this was postponed as a result of a further text message sent at 02 48 hrs that morning and a further investigation meeting was held with the Transport Manager that day, in respect of which the Complainant did not receive any minutes.

On 3 October, the Complainant called his mobile provider to freeze his number and also received text message correspondence from them confirming that no text messages had been sent from his phone to that of the Transport Manager.

A disciplinary hearing was finally held on 5 October with the Operations Director, subsequent to which the Complainant was dismissed from his employment pending any appeal.  

This appeal was heard by the Respondent’s Managing Director and despite the Complainant producing his original phone bill which showed that he had not sent the messages from his phone and which the Managing Director accepted to be genuine, the decision to dismiss him was upheld.

The Respondent stated that the Complainant was placed on lay off due to the impact of the Covid-19 pandemic in March 2020 and was asked to return to work as of 22 September 2020. However, on the morning of 21 September 2020 at 01.00AM and 01.02AM, the Transport Manager of the Respondent Company received two text messages, implying resignation in an extremely rude and abusive manner. The Complainant called the Transport Manager later that day to ask for the code for the Respondent’s gate, as he maintained that he had lost all of his phone contacts and denied any knowledge of having sent inappropriate messages when queried on these.

On 22 September 2020 the Transport Manager held an informal investigation where the Complainant informed him that he believed his phone was hacked and that it may have been his partner or another person with whom he has had past difficulties. On 29 September 2020, the Complainant was informed in writing that he was being placed on paid suspension pending an investigation into the allegations before him. Furthermore, the Complainant was invited to attend a disciplinary hearing on 30 September 2020 by the Operations Director.

However, the Transport Manager received a subsequent rude text message on 30 September 2020 at 02.48AM from the Complainant appearing to be meant for another person “Martin”. Thus, the disciplinary hearing was rescheduled allowing for an investigation into the said message by the Transport Manager on this date. During that meeting, the Complainant denied all knowledge of the text message.

The Complainant was invited to a rescheduled disciplinary hearing with the allegation in relation to the text received 30 September also included. The hearing was scheduled for 2 October at 2.30PM. The Transport Manager received a further text message from the Complainant’s number on 01 October 2020 at 02.48 regarding vandalising and stealing Company property. Thus, the disciplinary hearing was rescheduled, and a third investigation meeting was held with the Transport Manager. Within that meeting, the Complainant, again, denied all knowledge of the message. Subsequently, the Transport Manager received messages from the Complainant’s number on 4 October 2020 and 7 October 2020, both inappropriate, the latter message being extremely rude.

However, the Complainant attended a disciplinary hearing on 5 October 2020 with the Operations Director, in which the Complainant referred to a message from Vodafone stating that no text messages were sent from his number as alleged. The Complainant denied sending such messages and maintained it was possible his phone was hacked, or the messages were sent by a person known to him.

However, the Operations Director decided that on the balance of probabilities, it was more probable than not, based on the evidence that the Complainant had sent the messages and his employment was therefore terminated. This was confirmed to the Complainant by way of letter dated 13 October 2020.

The Complainant appealed the decision on 13 October 2020 and the appeal was heard by the Managing Director on 03 November 2020. The decision to dismiss was upheld and this was confirmed by letter to the Complainant on 10 November 2020.

THE LAW:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

4)     Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

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

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

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

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

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

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

In the instant case, I note that the Complainant was found to have sent wholly inappropriate and threatening text messages to the Transport Manager which caused the Respondent to lose trust in him and resulted in his dismissal.  

While I note that the Complainant denied having sent these text messages and produced a copy of his mobile phone bill at the appeal hearing, which the Managing Director accepted to be genuine, and which showed that the messages were not sent from his phone, the Respondent asserted that he may have sent these as web text messages which would therefore not have shown on the phone bill. In addition, the Respondent highlighted that the content of the text messages contained information about the Respondent which would have been known to only a few people within the company and the Complainant denied having shared this information with any other person. The Respondent also stated that regard had been given to the fact that, although the Complainant stated that he had been in contact with the Gardai regarding a possible hacking of his phone by someone seeking to destroy his reputation, he failed to produce any evidence, either at the disciplinary hearing or the appeal stage, of such contact. While much was made by the Complainant’s representative of the fact that there were no records produced by the Transport Manager’s of his own phone mobile phone bill, which would show details of any text messages he received, it was clear from the Complainant’s phone bill, produced in evidence at the hearing, that there is no record of text messages received shown on mobile phone bills and that such bills only list text messages sent by the phone owner. When I put this to the Complainant’s representative at the hearing, he was unable to produce any evidence to suggest that there is a record of text messages received shown on mobile phone bills.  

In light of the foregoing, the finding of the Respondent that, on the balance of probabilities, the text messages were sent by the Complainant was, in my view, reasonable. In addition, the sanction of dismissal was both proportionate, given the content and wholly inappropriate nature of the text messages, and in line with the company’s disciplinary procedures.

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

I note firstly that the Complainant was afforded a full investigation of the allegations made against him, that he was given the opportunity to respond to the findings of the investigation during the disciplinary hearing, was given his full rights of appeal in respect the dismissal and was afforded the opportunity to be accompanied at every stage throughout the disciplinary process.

While it was not ideal that the Transport Manager conducted the investigation, given that he was the recipient of the text messages allegedly sent by the Complainant, I noted that the investigation was just a fact gathering exercise and no findings were made by the Transport Manager. I also noted, with some concern, that, as well as conducting the investigation, the Transport Manager made the decision to suspend the Complainant and that this was not confirmed in writing until one week after the initial investigation meeting had taken place. This is at odds with the standard practice where the investigation is conducted by someone who is wholly independent and does not typically commence until such time as the employee has been suspended in writing, if indeed a decision to suspend has been made. It was also noteworthy that minutes were not furnished to the Complainant in the aftermath of each meeting and that there was no investigation report provided to the Complainant, although I did note the Complainant received the minutes of each meeting in advance of the disciplinary hearing.

Notwithstanding the rather flawed investigative process however, I note that the Complainant did not challenge either the decision to suspend or indeed any aspect of the process at the time. I also find that the procedural deficiencies surrounding the investigation and the decision to suspend 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 wholly independent disciplinary and appeal hearings as well as the detailed correspondence which followed from these and the compelling evidence from both the Operations Director and the Managing Director in relation to the disciplinary and appeal hearings, I am satisfied that the procedural breaches which I have identified in advance of the disciplinary hearing were insufficient to render the dismissal procedurally unfair.

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

I find that the Complainant was not unfairly dismissed for the reasons outlined above.