Complainant

Respondent

Parties

Patrick  Salmon

Glanbia Ireland  / DAC

Complainant

Respondent

Representatives

Des Courtney  of SIPTU

Kevin Langford & Eamonn Butler of Arthur Cox

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-00043316-001

30/03/2021

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

CA-00043316-002

30/03/2021

The issues in contention concern the alleged Unfair Dismissal of the Complainant, a Storehouse Operative by the Respondent Dairy/Food processing Company.

The employment began on the 10/01/2000 and ended on the 27/11/2020.

The rate of pay was €830 gross for a 40-hour week.

An associated Complaint regarding statutory notice was also attached.

1:1         Unfair Dismissals Act,1977 Complaint; CA-00043316-001

A comprehensive Written submission was presented by SIPTU and supported by Oral evidence from the Complainant. He was cross examined fully by the Respondent Representative.

The evidence presented was that in mid-August 2020 three female employees of a Contract Cleaning Company, engaged on the site in Co. Kildare, made a number of allegations against the Complainant. These were deemed by local Management to be breaches of the Company Dignity at Work Policy – hereafter for convenience called the DAWP.

On the 30th of August 2020 the Complainant was suspended on full pay pending an investigation.

The investigation was carried out by Mr.RM of the HR site operation under the terms of the DWAP policy. The Investigation Report was issued on the 27th November 2020. It upheld the accusations made by the three ladies and the Complainant was dismissed with immediate effect. On the 4th December the Complainant unsuccessfully Appealed his dismissal to Mr. AB, Group Head of HR.

The Complainant’s Representative pointed to numerous and most serious procedural flaws in the Respondent case. There were multiple examples of failure to cross examine witnesses, accepting written complaints at face value, allowing one Accuser to sit in on investigation meetings of other Accusers etc and a grievous failure to properly interview the Complainant. He was never given the opportunity to cross examine his accusers face to face.

The principal flaw, however, was that the entire Investigation and dismissal was carried out under the DAWP policy. The DAWP does not have a Disciplinary function and the Respondent was completely at fault in basing a Dismissal decision on a DWAP finding. The DWAP (copy exhibited in evidence) provides at page 7 that the Respondent Disciplinary Policy effectively takes over if the DWAP finds adversely against an employee.

Management did not utilise the Disciplinary Policy and all its outlined procedural steps as provided for in all Agreements. Natural Justice was completely breached at numerous points. The Union pointed to extensive case law in support of their arguments – some headline cases, among many citations, cited were Re Haughey [1971] iR217 and Frizelle v New Ross Credit Union Ltd [1997] IEHC 137.

The issue of the investigator, Mr.RM being both Investigator and Imposer of Sanctions was pointed to as major issue of concern.

Furthermore, the penalty of Summary Dismissal was completely disproportionate for a worker of 20 years unblemished service. The issue of what is “Gross Misconduct” was raised by the Union. The EAT case of Lennon v Bredin M160/1978 was cited – Gross Misconduct has to be very bad indeed (violent assault or gross larceny were cited as examples). Breaches of the DWAP policy have never been seen in this light.

The DWAP Policy states that actions arising from the process are deemed to be “corrective and never punitive”. At all times the working relationship are to be restored. Emphasis was placed by the SIPTU representative, on the Complainant’s letter of reply (13th of November) to the allegations forwarded by Mr. RM where he made a fulsome apology for actions which he described as simply being “Old school” and for which no malign motive could be interpreted by any reasonable person.

In this context the Dismissal of the Complainant is completely disproportionate.  The actual dismissal process was completely procedurally flawed and was a travesty of all rules of Natural Justice.

Numerous case law and Legal precedents were cited in support of the Complainant’s case.

In his Oral evidence the Complainant completely denied the allegations made against him by what he called a closely related family of accusers, all supporting each other, in their false allegations.

1:2        Minimum Notice & Terms of Employment Act, 1973Complaint: CA-00043316-002

The Complainant was dismissed without Statutory Notice and was claiming the full entitlement of eight weeks pay. As the Dismissal was completely Unfair the withholding of notice was equally in error.

The Respondent provided a full written statement and supported this with extensive direct Oral evidence from Mr. RM of local HR and Mr. AB of Group HR.

2:1       Unfair Dismissals Act,1977 Complaint:  CA-00043316-001

In essence the Respondent stated that following from serious allegations against the Complainant, alleging improper conduct, from three female employees of a Contract Cleaning company, a full investigation was undertaken under the DAWP Policy. From this it became clear that the allegations were substantiated, and the offences were so serious that immediate dismissal was the only option.

Full natural justice was afforded to the Complainant up to and including an Appeal against his dismissal. An extensive range of witnesses were interviewed, both the three ladies themselves but also other parties who were referenced as witnesses to the Complainants’ alleged improper behaviours. A key witness in this context was the Catering Manager -Mr B.

Written witness statements were made, and all material was copied to the Complainant. He and his full time SIPTU Representative, Mr. Palmer, were afforded a substantial opportunity to consider and rebut the charges prior to the Final Report / Disciplinary meeting of the 27th November 2020.

The entire issue was again examined in depth at the Appeal Hearing on the 4th December 2020.

The Complainant was represented by SIPTU at all stages initially by a local Lay Official (Shop Steward, Mr. Byrne,) and later by a full-time professional Official (Mr. Palmer).

At all stages the process was thoroughly professional and fair. The Union, SIPTU, had been in agreement that Mr.RM -the local on-site Manager – handle the entire process. From Oral evidence it was clear that Mr.RM had informally discussed the process and how it might best be handled with the local Shop Steward prior to beginning his investigation.

In Oral evidence, primarily, from Mr. RM, the question of why the DAWP policy was used exclusively was discussed. The Respondent stated that it was the clear wish of all the parties, from the earliest stage, that the situation be “kept Local” to the Plant in Kildare. The local HR Manager, Mr.RM, and the local Shop Stewards agreed that Mr.RM should run the process and come up with any findings.  Mr. RM was a very experienced Manager with some 41 years’ service. He was locally based at the Plant. He completely understood the Industrial Relations picture and all the personalities at the Plant. The Plant is a very large employer in a rural Kildare setting with a lot of long-standing local sensitivities and histories.

It was the belief of the parties, initially, that he, Mr RM, would safely resolve, without any unnecessary publicity, the issues involved and avoid involvement from Head Office and other non-local personnel. The DAWP policy was well understood by all involved and accepted as a suitable mechanism for the local scene.

At all stages during the investigation there was no complaint or negative feedback from SIPTU locally in regard to his investigation.

The investigation was fair, and the allegations substantiated as extremely serious. The decision to dismiss was considered carefully and other options looked at but eventually it, Dismissal, was the only possible outcome.

Substantial case law precedents were quoted in support -Bank of Ireland v James Reilly [2015] 26 ELR 229 and Monnickendam v Limerick City Council (UD 765/2012) being principal references in support of “Reasonable” Gross Misconduct dismissals.

2:2        Minimum Notice & Terms of Employment Act, 1973 Complaint: CA-00043316-002

It is well established Law that Minimum notice is not payable in a case of Gross Misconduct dismissal. As this was the case here the Respondent stated that this complaint could not be Well Founded.

3:1       Unfair Dismissals Act,1977 Complaint:  CA-00043316-001

3:1:1        The Legal Position / Natural Justice / Role of Adjudicator / Relevant legislation and SI 146 of 2000 / Case Precedent

3:1:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding and overarching principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:1:2          The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

Accordingly, in the case in hand the key question is whether or not natural justice was followed in all procedural matters with particular reference to SI 146 of 2000 - Code of Practice on Grievance and Disciplinary Procedures and the ultimate decision to dismiss was in the “Band of Reasonableness”.

Sub Section 7 of Section 6 of the Unfair Dismissals Act, 1977 is also critical

 (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, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

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

(b) to 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 section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

However, legal issues and precedents notwithstanding, in all cases the basic fact is that they all rest on their own evidence and factual context.

The evidence, both written & oral and context will be considered below.

3:2         Consideration of key Evidence presented and conclusions.

3:2:1       Unfair Dismissals Act,1977 Complaint:  CA-00043316-001

Key questions here are

A.     Was Natural Justice observed to a proper degree?

B.     Were proper Procedures followed both in Local Agreements and as guided by SI 146 of 2000

C.      Was the Dismissal “Reasonable” as generally considered in case law

D.     Were there local contextual issues involved that might have a material bearing on the answer to any of the above questions?

3:2:1 -        A - Was Natural Justice followed.?

The Headline has to be from Justice Flood in the Frizelle v New Ross Credit Union [1997] IEHC 137  case as quoted above.

All the written evidence provided to the Adjudication pointed to a very serious and comprehensive Investigation by Mr. RM. Statements were taken, all witnesses were interviewed including those referenced such as Mr. B, the Catering Manager. It painted a clear picture of alleged activities that required a serious response/defence from the Complainant.

However, it was pointed out by his SIPTU Representative, Mr Courtney, that the Complainant, Mr. S, was never formally interviewed by Mr.RM and neither he nor his full time Union Representative, Mr. Palmer, was ever given an opportunity to cross examine the accusers. The Complainant felt that there were numerous inconsistencies in the witness statements and these were never properly followed up on which could have happened via a cross examination process by his SIPTU Representative.

There were also issues as to the presence of one accusing witnesses when other accusing witnesses were being questioned by Mr.RM. The Complainant was forwarded the Witness statements on the 29th October and to which he replied via his Representative on the 13th November 2020.

Another issue of major concern to Mr. Courtney of SIPTU was the role of Mr. RM as both Investigator and Dismissal Decision maker. All legal precedents indicate that there has to be a clear differentiation between these two roles. The same individual cannot do both roles as appeared to be the case here.

Taking the case law from the Lyons v Longford Westmeath Education and Training Board and the Frizzell/New Ross case quoted above, (especially the right to give direct personal evidence and cross examine witnesses particularly where a job -/dismissal is at stake), the evidence had to point to the existence of a number of serious shortfalls in the application of Natural Justice in this case.

3:2:1          B: - Were proper Procedures followed.?

The major issue here was as highlighted by SIPTU -the entire process including the Dismissal was handled under the DAWP policy. The Policy as presented in evidence does not have a Dismissal option but refers to matters being progressed, if appropriate to the separate Disciplinary Policy. The Section “Outcome of the Investigation: Complaint Upheld clearly states that the Company Disciplinary Policy is the next step. Dismissal is referred to as a possible outcome but the overall tone of the DWAP policy is one of Counselling/Behavioural modification by the Offender.

Of particular interest in this case is the phrase

“The person appointed to conduct the disciplinary hearing will not have been involved in any aspect of the original investigation process”

The role of Mr.RM in the case is hard to understand in the context of this clause.

However, it must be noted that local Shop Stewards were fully aware of Mr. RM’s role - by his oral evidence and did not apparently object during an extensive investigation involving many witnesses.

3:2:1         C: -- Was the Dismissal “reasonable”?

The answer here has to be that in the light of the Procedural and Natural Justice shortcomings and especially the entire DAWP Process the Dismissal of the Complainant in this case could not, from the evidence and from an objective observer point of view, be seen to be “reasonable”.

In addition, the Complainant made a very fulsome apology in his reply of the 13th November. If the Non-Punitive thrust of the DWAP is given weight by Management, the decision to dismiss and not to be seen as Unreasonable, required careful and very substantial reasons.

3:2:1        D – Were there particular local issues involved that impacted on any of the above points.?

Oral evidence was crucial here. Mr. RM gave extensive evidence which was very professional and straightforward. It reflected his long experience of the Plant and all HR and IR issues there for many years. He was extensively cross examined by Mr. Courtney of SIPTU.

The Complainant also gave Oral evidence which largely consisted of a series of repetitive denials even when fairly logical questions were asked of him in cross examination. It would be difficult, (even accepting that the Burden of Proof was on the Respondent), to describe his Oral presentation as aiding his case.

The picture that emerged was of a desire at all local Levels (including SIPTU Shop Stewards) in the Plant to have the issues resolved at a local level. It was clear that there was a feeling that Mr.RM, a long-standing local manager was the best man to do the job and he was, very importantly, apparently trusted by all sides. The DWAP vehicle, it appeared, could provide the necessary “Procedural” cover.

The witness evidence, even when allowing for the serious procedural shortcomings refereed to, on the balance of probability, was not in the Complainants favour. In the Report of the Appel Hearing (10th December letter from Mr AB) the clear impression is given that the Appeal from SIPTU was based, once the Legal issue of Natural Justice etc were considered, on the grounds of Proportionality.

In conclusion the Oral evidence pointed to a situation of alleged improper behaviour in a local rural setting that all parties (all well known to each other) wanted kept local with a trusted local Manager, Mr. RM, handling the entire process.

Any procedural shortcomings have to be weighed against this situation.

3:3         Adjudicator Conclusion to Unfair Dismissal case CA-00043316-001

Mr. Justice Flood (Frizelle v New Ross Credit Union) is quoted above and it is worth repeating

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

In this case there are too many shortfalls in Natural Justice and Procedural irregularities to sustain the Respondent defence.

A case of Unfair Dismissal has been proven, from all the evidence, both Oral and Written.

However, in considering Redress below much weight has to be given to the local issues referred to above in Paragraph 3:2:1 D

3:4          Minimum Notice & Terms of Employment Act, 1973Complaint: CA-00043316-002

As a case of Unfair Dismissal has been proven, from the evidence, the Minimum Notice complaint has also to be deemed Well founded.

Statutory Minimum Notice of eight week’s pay is due to the Complainant

Minimum Notice, Natural Justice, Unfair Dismissal. xx