Complainant

Respondent

Parties

Robert  Libera

Regeneron Ireland DAC

Representatives

Tiernan Lowey BL instructed by Keating Connolly Sellors Solicitors

 Arthur Cox 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-00029925-001

29/07/2019

The Complainant was dismissed for gross misconduct for sending what was deemed an offensive text with possible sexual inuendo to a person who was an employee of a third-party supplier.  

The Complainant was employed as a Manufacturing Support Lead from August 10th 2015 to the date of his dismissal on March 20th 2019.  The Complainant was dismissed for sending an allegedly offensive communication to an employee of a third-party supplier who also worked on site (hereinafter called Ms. A) on January 18th 2019.

The Employer erred in fact, procedure and in the application of the law and best principles most particularly in its failure to afford the benefit of fair procedures and natural justice. The employer was on notice of these issues at both the dismissal and appeal stages.

The employer did not consider all the facts and document upon which the employee was relying.

The reasoning upon which the employer relied to reach its findings in the first place and on appeal were incoherent and inconsistent.

It was only on being furnished with certain documents in May 2019 after the appeal process concluded pursuant to a GDPR application it became clear the initial complainant (Ms. A) had clarified by text on the day of her interview with Mr. Downey that she had not seen the clip attached to the allegedly offensive communication.  The clip proves that no bad intentions existed in the communications and was intended as a joke. The Employer failed to consider the content of this clip and this was a serious misjudgement.

The employer chose to replace words used by the Complainant with words not used by him as English was not his native language and he was offered no leeway in this regard.

Social media exchanges are common place now outside of work and the Complainant and Ms. A had engaged in significant dialogue freely on social media regarding health foods. The Complainants texts were a joke and related to a common TV cartoon programme called Family Guy. While Ms. A was only 22 at the time the Complainant expected she would know the context of his comments as they were well known and common phrases in the cartoon comedy Family Guy.

The Complainant, when viewing the alleged offensive message, informed the company during the investigation that she had not seen the comedy clip and subsequent to her initial complaint emailed the HR Manager that she had not seen the comedy clip when she made the complaint. The employer withheld this important information until after the Complainant was dismissed and never sought clarification from Ms. A as to whether the clip added additional context to the communication. If this had been done it would have seriously affected the gravity of the situation and the severity of the resulting disciplinary action.

The Employer did not invoke the Dignity at Work policy (when it should have) and this would have given the Complainant greater protection as a process as there are more safeguards to protect the accused in that policy.

There were no terms of reference for the Investigation conducted and it was 7 days before the Complainant was told an investigation had begun. The investigation made findings of fact and the Complainant was denied natural justice and not allowed cross examine appropriate persons and he was not allowed legal representation.

The Complainant was accused of misconduct but this was changed to gross misconduct by a person not involved in the issue.

There was no evidence of the lack of trust issue claimed being examined by management.

The actions of the Complainant, with his good prior record, should have resulted in a much lesser sanction than dismissal.

The Complainants career has been derailed and he has suffered financially and long term damage to his career prospects have occurred.

The Complainant sought compensation as the appropriate remedy for his unfair dismissal.

It was denied the Complainant was dismissed unfairly.  His employment was terminated for gross misconduct pursuant to Section 6 of the Unfair Dismissals Act 1977. The decision to dismiss arose following a full investigation, disciplinary and appeal procedure. The Respondent followed fair procedures and afforded the Complainant natural justice.

In January 2019 allegations of inappropriate behaviour were made against the Complainant by Ms. A who worked for a supplier of the Respondent and who was based on the Respondents site. Two allegations were made and one was not upheld. The specific allegation that was upheld related to an incident on January 18th 2019 when the Complainant gave Ms.A a bottle of fruit juice to drink and only after she had acknowledged to him that she had drank it, he asserted to her it contained inappropriate ingredients, hinting it may have ben a biological fluid or otherwise something he characterised as “part of him” being “inside of her” and if she felt part of him inside her”.

The Senior Director of Human Resources (Mr. Downey) and the Director of Cell Culture Operations (Mr. Fitzgerald) were appointed to investigate the matter. On January 28th 2019 Mr. Downey wrote to the Complainant outlining the allegations that had been made against him and invited him to an investigation meeting on January 29th 2019. The Complainant raised a number of queries relating to confidentiality, procedures and any potential appeal and these were responded to and a meeting then took place on January 31st 2019. At the meeting the Complainant confirmed that he did make the alleged comments however he explained that he was “trying to be funny” and was referring the Family Guy cartoon.

The Investigators met with Ms. A during the course of the investigation and she described the incident as having a big impact on her that weekend and was the worse weekend of her life. Ms. A stated she was terrified and felt physically ill as a result of the exchange with the Complainant.  Ms. A suggested her Supervisor Mr. B was a potential witness and the Investigators met with Mr. B and he confirmed that Ms. A was very emotional and upset during his conversation with her.

The Investigators found that this exchange prompted an adverse response from Ms. A and recommended the matter proceed to a disciplinary hearing. The Complainant was provided with a copy of the investigation report in draft on January 20th 2019 for his comments and the final investigation report issued on March 1 2019.

The Complainant was invited to a disciplinary meeting by Mr. Mark Everitt, Plant Controller to be conducted by Ms. Susan Kearney, Associate Director on March 7th 2019. The Complainant raised a number of issues and these were replied to and the disciplinary meeting took place on March 15th 2019. Ms. Kearney focused on the Facebook conversation and the Complainant reiterated he intended the comment to be funny. On March 20th 2019 Ms. Kearney again met with the Complainant and confirmed the outcome of the disciplinary hearing and while accepting the Complainants comments may have been intended to be humorous, the message was not humorous and his comments to a female person were totally inappropriate and  “ havingmore than a reasonable prospect as being interpreted as sexually suggestive and that the female in question clearly had a very immediate and adverse reaction to the suggestion and her immediate reaction is visible and clear from messenger exchanges”.  Ms Kearney considered all relevant information and documentation and issues raised by the Complainant but confirmed he was being dismissed for gross misconduct with immediate effect and one months pay was paid as a good will gesture.

The Complainant appealed the sanction to the Site VP and he appointed Mr. Brian Corcoran, Executive Director to hear the appeal.  The appeal was heard on April 16th 2019 and the Complainant outlined his grounds for appeal, in that it was not gross misconduct and did not have a sexual innuendo and disagreed that he had not made a true apology. By letter dated April 23rd 2019 Mr. Corcoran responded to each ground of appeal and found that the Complainants actions and lack of judgement amounted to gross misconduct and upheld the dismissal.

The Complainant was dismissed in line with Section 6 of the Unfair Dismissals Act 1977 for “the conduct of the employee” and therefore was not unfair.

The Complainants behaviour constituted a massive error of judgement, which had a profoundly negative impact on Ms. A, his initial reactions did not meet the standard of behaviour required by the Respondent of its employees.

In the circumstances set out above it was submitted that the process that led to the dismissal of the Complainant was within the band of reasonable responses available to the Respondent. 

The Law.

“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.

The Adjudicator has given considerable consideration to the submissions, the evidence at the Hearings from the Decision-Makers and the Complainant and to the relative merits of both cases put forward on both the substantive and procedural issues involved.

There are a number of core issues involved in the consideration of this complaint.

1.      Was the message sent by the Complainant offensive?

2.      Did the person who received the message considerer the message offensive and want the issue investigated?

3.      Was procedural fairness followed in the investigation and disciplinary process?

4.      Were the people involved in the dismissal decision making and appeal process made aware of all the facts to allow them make a reasoned decision?

5.      Were alternative sanctions to dismissal considered?

6.      Was the decision to dismiss fair in all the circumstances of this case?

I will now deal with each of the above issues.

Was the message sent by the Complainant offensive?

The Complainant gave Ms. A a juice drink at work. The Complainant in evidence stated he often gave staff advice on health drinks and distributed same. The message contained inappropriate words from a Family Guy You Tube video (detailed below) which could lead to various interpretations. The text message may have been intended to be humorous but can but be considered, in isolation, as inappropriate, offensive and contain possible sexual inuendo.  Ms. A saw it serious enough to make a compliant of sexual harassment. In summary, whatever the Complainant intended, the message was seriously ill advised and contained inappropriate language of a possible sexual innuendo nature.

Did the person who received the message considerer the message offensive and want to issue investigated?

It is necessary to put the exchange between the Complainant and Ms. A in its context. The exchange took place after work on a Friday and started about the contents of a fruit drink provided by the Complainant to Ms. A at work.  The conversation appears to have been commenced by the Complainant with a brief hi. Ms. A then shows a photo of herself to the Complainant drinking a Vodka 7Up and Rose drink. The discussion briefly goes into if Ms. A has plans to do anything that evening. Ms. A then thanks the Complainant for the fruit drink and that she had “drank it all and it was really nice thank you”. The Complainant then states he was glad she liked the drink and “do you know that there was one more secret ingredient inside that juice””. Ms. A asked “Like what”. The Complainant responds by saying “I can have to tell you that would be appropriate” (possibly he meant inappropriate).  Ms. A responded by asking “well I drank it id like to know whats in it” and the Complainant replies “what can I say now a part of me is inside you”. Ms. A replies “what” and the Complainant replies “do you feel part of me inside you”. Ms. A  replies “what kinda part” and the Complainant replies “Hahaha Im just joking girl”. The Complainant then states its an organic and high-quality juice and Ms. A repeatedly states she is both worried about what’s in the drink and did the Complainant put something into it. The conversation then goes on with the Complainant explaining it was a joke and Ms. A stating it was a weird joke, Ms. A states she is very upset and the Complainant apologises and states that they must have a different sense of humour. The Complainant repeatedly states he did not put anything (inappropriate) in the drink. Ms. A states it’s a serious matter and she will be taking it further. The Complainant again apologies (the next day) and states he did not think “you take it too seriously”.

Its important to state that the Complainant accompanied his initial text comments with a You Tube short clip from Family Guy which almost exactly states what the Complainant stated in the text exchange. The Complainant stated in evidence he was a big Family Guy fan. Ms. A did not open the You Tube clip at the time of the Facebook exchange and therefore had not seen the Family Guy clip at the time of the exchange. The Complainant was unaware at the time of the exchange that Ms. A had not opened the You Tube clip. So, in conclusion the sending of the type of message to a female employee was inappropriate and was very reasonably perceived at the time by the Ms. A as being laden with sexual innuendo.

What happens next in the sequence of events is critical to the outcome this case. Ms. A sends and email at 21.34 on January 20th 2019 to Mr. Downey outlining in detail the events described above and stating if the Complainant did contaminate her drink “with a part of him…  there may be serious health implications for her and she “was beside herself with worry” and she was terrified going into work the next day. She stated the Complainant had been offering assistance to her to try get her a role in the Respondent company (which the Complainant denied) and that she took these at face value but now believed they were “sexually motivated”.  Ms. A stated she felt violated and was considering going to the Garda about the issue and asked for Mr. Downey’s help. Mr. Downey called Ms. A and met her first thing the following morning to discuss the issue. However, subsequent to this meeting at 11.06 on January 20th Ms. A emailed Mr. Downey and her Supervisor, the content of which I will refer to in a later paragraph. This email was never supplied to the Complainant during the dismissal and appeal process and the Complainant was unaware of this email until his legal Representatives made a GDPR request for data post his dismissal appeal. A redacted version of the email was supplied in evidence to the Hearing. At the Hearing the Adjudicator insisted on seeing the full email. This was supplied to the Adjudicator subsequent to the Hearing by the Respondent on the proviso it not be disclosed to the Complainant or his legal representatives for GDPR reasons. Rather than get into a protracted debate about the validity of this request from the Respondents legal team the Adjudicator wrote to the Complainants legal team confirming I had received the full email, explaining the Respondents GDPR objection to it being shared with the Complainant and would take the email into consideration in my decision. In summary this email, in the Adjudicators assessment,  withdrew the complaint and clarified that Ms. A now had a different view of the messages.

It is now critical to discuss the broad content of the email sent by Ms. A approximately one hour after meeting Mr. Downey ,  where Ms. A advised Mr. Downey and her Supervisor of certain information regarding the exchange that had just come to her attention. Because of possible GDPR considerations I will not divulge the detail of the non-redacted portion of the email however it is important to note that had this email been available to either the Complainant or the Decision Makers in this case a very different outcome than dismissal could possibly have been an outcome. It is indeed questionable if any Investigation at all should have commenced into the allegation based on the clarifying comments from Ms A about the situation and the need for an Investigation. In general, suffice is to say that nearly all of Ms. A’s comments in the email favoured the Complainant.

Was procedural fairness followed in the investigation and disciplinary process?

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that “any investigation should have regard to all the facts, issues and circumstances”. As stated above none of the decision makers had sight of this email prior to making their decisions. Also, all three Decision makers confirmed that had not interviewed or sought to interview Ms. A in their decision-making process. All three Decision Makers also confirmed they had not seen the You Tube clip. These are fundamental procedural and natural justice flaws in the disciplinary process. Why this email was not disclosed to the Decision Makers is baffling to the Adjudicator as it would have been key to them forming views on the severity of the allegations, Ms. A’s new view of the exchange and the ultimate dismissal of the Complainant. Its exclusion from the Investigation Report and not providing it to the Decision makers was never quite explained.  Also, why the Investigators, one of which was aware of the email as he was a Recipient, choose to make no reference to the email of January 20th 2019 from Ms. A in their Investigation Report is a serious factual and procedural omission. The Investigators also made a finding of “we recommend the matter proceed by way of convening a disciplinary hearing to address potential misconduct based on the above facts”. Normally an Investigator will not recommend disciplinary action but leave that decision to the Line Management involved based on their report which was not the case here.

There were no written Terms of Reference for the Investigation prepared (or agreed) by the Respondent prior to this investigation. The disciplinary Policy is silent on this matter and it is good practice to have documented and agreed Terms of Reference for an Investigation, especially one that may lead to dismissal. The Respondent Disciplinary Policy only allows for an employee to be represented by a work colleague in a disciplinary process. This restriction seriously restricts the rights of an employee to a fair and balanced Hearing where the Respondent has the capability to have the advice and support of a legal firm. Recent case law (the Lyons case) determined that the principles of natural justice must be applied when conducting a disciplinary procedure. This was a High Court Judicial review case where Mr. Lyons was at risk of considerable personal and reputational damage arising from serious internal employment related allegations. The High Court confirmed the right to cross examination and to be legally represented in a disciplinary process where an employee is losing their job and/or their reputational/good name is at stake. The circumstances in this case are similar and while not much was made at the Hearings about the lack of opportunity for legal representation the fact that it was not allowed by the Respondent  (in this type of circumstance)  is a procedural flaw. The Complainant also was never given the opportunity to cross examine Ms. A on her complaint and again this is a procedural flaw in this case.  Mr. Everits role was not defined/contained in the Disciplinary Procedure and his failure to interview the Complainant is another serious flaw in the procedure. However, the ultimate procedural failure is the non disclosure of the January 20th 2019 email to the Decision Makers.

In Mr. Fitzgerald’s letter to the Complainant inviting him to a Disciplinary Investigation meeting he states the “type of behaviour would amount to misconduct”. He does not state “Gross Misconduct”. However, he does advise it could lead to dismissal if proven. Given that Mr. Fitzgerald was one of the Investigators into the issue it is normally inappropriate that an Investigator should make a decision on fact. Again, the Company Disciplinary policy is silent on the role, purpose and outcomes required of an Investigation. Given that as it may be, Mr. Fitzgerald classified the actions of the Complainant as misconduct. In what is a highly unusual procedural step the report was then given to Mr. Everitt, the Plant Controller for review. Mr. Everitt, while not in any way impugning his character or motives, changed the allegation from misconduct to gross misconduct by letter dated March 5th 2019. Nowhere in the Respondents disciplinary procedure is an interim decision-making process described. Mr. Everitt was not involved in the investigation and was not given sight of the January 20th email from Ms. A when making this decision. In Mr. Everitts email to the Complainant dated March 7th 2019 he stated  “I am not the Decision maker in the disciplinary case”. However, he changed the assessment of the allegations from misconduct to gross misconduct so therefore he had made a serious decision in this case about the severity of the issue to be examined without hearing from either Ms. A or the Complainant. This was a breach of natural justice to make this change without seeing the email of January 20th, interviewing Ms A or the Complainant. Subsequent to this on March 15th Ms. Kearney states that Mr. Everitts role was to “determine whether he agreed with Ivor and Dave’s recommendation that it should proceed to disciplinary hearing”. Therefore, based on Ms. Kearneys view of Mr. Everitts role he exceeded his remit by changing the classification of the allegations from misconduct to gross misconduct. The main point here is that a person was involved outside the normal disciplinary process in making a decision  which had serious consequences for the severity of the disciplinary action to be evaluated by Ms. Kearney. Ms. Kearney was also more junior in organisational terms to Mr. Everitt at the time of the decision and again its highly unusual that a decision made by a more senior Executive would then be given to a more junior Executive to decide upon.

The Respondents Disciplinary policy states “the employee is entitled to be presented with full details of the issue, complaint or allegation against him or her. They will also receive copies of relevant documents, if any, to be produced at the Hearing supporting the proposed discipline”. Quite how Management did not supply the Complainant with the email of January 20th 2019 from Ms. A during the Investigation or Disciplinary phases was never explained adequately to the Adjudicator. This serious  natural justice omission put the Complainant at a serious disadvantage in defending his position and was a very serious flaw in the Respondents case as Ms. A had subsequently significantly amended her views on the issue and did not want an Investigation to proceed.

Were the people involved in the dismissal decision making and appeal process made aware of all the facts to allow them make a reasoned decision?

As stated above three of the key decision makers were not made aware of the January 20th 2019 email and this caused them to make a decision without the full facts being made available to them.

In evidence at the Hearing neither the person who changed the disciplinary action from misconduct to gross misconduct, the person who made the decision to dismiss or the person who heard the appeal confirmed they had not had sight of this email (either the redacted version or the complete version) while making their decisions. Again on Oath, all three confirmed they may not have reached the conclusions they did reach had they sight of this email. In evidence Mr. Downey advised he did not consider it appropriate to suspend the Complainant until the Investigation was completed. He advised he considered suspension but felt it appropriate to wait until the facts  were established. Mr. Everitt in evidence (and under cross examination) confirmed he was unaware of the email of January 20t 2019, was not aware of the definition of the difference between misconduct and gross misconduct , had not examined the Company Disciplinary Policy during the process and it was the serious nature of the allegations that he considered making his decision to change the disciplinary action from misconduct to gross misconduct. He advised he saw no difference between misconduct and gross misconduct. He also confirmed he had no HR background.

Ms. Kearney (in evidence and under cross examination) advised she was with the company since its start in Ireland and wrote both the Disciplinary and Dignity at Work policies. She saw sexual misconduct as gross misconduct. She accepted the Complainants intent was intended to be  humorous. She stated the language used by the Complainant was not acceptable in the workplace and that Ms. A’s reaction “was so strong” yet confirmed she had never interviewed Ms. A. She stated the Complainants comments could only be interpreted one way and that they were “sexually suggestive”. Ms. Kearney confirmed she was not made aware of the email from Ms. A on January 20th 2019 and was not aware that Mr. Everitt was not aware of the difference between misconduct and gross misconduct. She was unaware of who brought Mr. Everitt into the disciplinary process and felt it could have been the Legal Department. Ms. Kearney confirmed she had not viewed the Family Guy clip before dismissing the Complainant.

Mr. Corcoran (in evidence and under cross examination) accepted the message had intended to be humorous but than “any reasonable person would not see anything else but sexual innuendo in the exchange”. He stated the Complainants negative dismissive attitude to the issue and could not understand how the Complainant did not see the sexual innuendo in the message. He confirmed he had not seen the email of January 20th 2019. Mr. Corcoran stated he took the broad context into view when considering the appeal and how he could not defend the words used if questioned on the issue by female staff as not being sexual innuendo. He stated the Complainant made a heartfelt plea to save his job and did not raise any points of process at the appeal Hearing. He stated he was empowered by the Legal department to make whatever decision he wished on the appeal. He stated he was still confident in his decision. Under cross examination , when the issue of the January 20th email was put to him he stated he should have been made aware of the email and would have liked to take it into account in his decision making and may have changed his view of the situation.

Were alternative sanctions consider to dismissal?

Case law relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”. No evidence was given of any serious consideration been given to an alternative sanction. This may be understandable given that the email of January 20th was withheld from Ms. Kearney and she was operating from the flawed Investigation Report.

Was the decision to dismiss fair in all the circumstances of this case?

In Looney v Looney, UD83/1984 in which the EAT referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

With regard to the question of what a reasonable employer would have done in the circumstances, as Lord Denning put it in British Leyland UK Ltd V Swift (1981) “if a reasonable employer might have dismissed him, then the dismissal was fair”. This concept was expanded upon in Abdullah V Tesco Ireland plc (UD1034/2014 in which the EAT stated “What is required of the reasonable employer is to show that s/he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and the sanction of dismissal as not disproportionate”. Given the clarification of her position by Ms.  A,  a reasonable employer would not have dismissed the Complainant and considered a lesser but still serious disciplinary action. The critical words above in the Abdullah V Tesco case are “arising from a fair investigation” which was not the case in this situation due to the non disclosure to the Complainant and Decision Makers of a critical piece of information.

 I have given great consideration to the issue of whether the decision should be deemed fair or unfair on both substantive and procedural grounds and concluded that the Complainants case is very weak on the substantive issue (irrespective of Ms. A’s clarification) but primarily succeeds on procedural grounds. Ms. A’s clarifications of her position in the January 20th email reduce the offensive impact of the wording of the texts sent to her.  However, the Complainant must bear some of the responsibility for his dismissal because of him sending a text that was/could have been interpreted as sexual innuendo irrespective of the Family Guy clip being attached. Having considered all the matters relevant to the decision in this case I find that the dismissal of the Complainant was unfair. However, the Complainant must shoulder some serious responsibility for initiating the events that lead to his dismissal. Sending a message like he did to a female work colleague, no matter how the Complainant deemed it to be trivial or funny was inappropriate, ill-judged and resulted in serious consequences for the Complainant.  What can be humorous to one person can be highly offensive to another. It is unfortunate that I cannot disclose, for albeit questionable GDPR reasons,  the contents of the email of January 20th 2019 as I believe this would provide a much more detailed rationale for my Findings and Decision.

The Complainant was unfairly dismissed. The Complainant has an approximate annual loss of 29,000 Euros plus a once off loss on shares estimated as 9,300 Euros giving a total loss for a two-year period (the maximum allowed for under the Act) of 67,300 Euros. I have considered the contribution of the Complainant to his own dismissal and weigh his contribution to his loss at 40% of the loss. Therefore,  the Respondent is liable for 60% of the loss which equates to 40,380 Euros. I award the Complainant 40,380 Euros compensation.

Unfair Dismissal