Complainant

Respondent

Parties

Eugene  Carter

Clonarn Clover Ltd

Representatives

  Self-represented.

 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-00036078-001

07/05/2020

The complainant submits that he was unfairly dismissed for alleged gross misconduct.

The complainant worked as a Quality Officer in an egg production plant from 21 November 2016 until his dismissal on 13 November 2019.

His annual salary was €36,000.

The complainant submitted his complaint to the WRC on 8 May 2020.

Witness 1. Complainant’s evidence.

The complainant states that he had an exemplary record as a Quality Officer and had worked well with the respondent, an egg producer, until August 2019.

Thereafter his life was made very difficult. He was getting over the death of his mother in July 2019 whom he had cared for prior to her death.

During his time with the company his value was manifest in the grants which he had secured for the company and in his work in securing a higher rating by the relevant inspection authorities for the company’s production and food standards than had been awarded to the respondent prior to his appointment.

On 30 August 2020 the complainant met with the respondent Managing Director who berated him because the Department of Agriculture had criticised the procedures being employed by the production manager in one of the respondent’s plants and had asked the company to adopt new procedures. He was also berated for an issue in the company’s second plant. The production managers for these plants were not disciplined in any way.

He was told he was no longer allowed to go to the Cootehill plant but was given no reasons. He was told that another employee had taken over his function, but this did not happen.  He contacted a Department of Agriculture official who told him that his name had not been mentioned at all in discussions with the respondent in August.

Alleged absence without leave.

There was confusion with the dates of his annual leave. He returned from leave on the 28 August and not the 26 August, as he had understood that he had a further week’s leave arranged. Whatever went wrong merited a verbal warning, and not a written warning. He received a second verbal warning for a further mix up about annual leave when he failed to return to work on 16 September and returned instead on the17 September. The respondent had emailed him on the 12 September informing him of his obligation to return from leave on the 16 September. He did not see this email until the night of the 15 December when he texted the HR Manager asking her to look at his email requests for leave on that date. The respondent replied on the 16 September telling him of his due return on the 16 September. He received no phone call on the 15 December telling him to turn up. He received a further warning on the 17 September.

Accessing of other employees’ computers on 8 and 9 October.

In the beginning of October, the Managing Director and HR Manager advised the complainant that due to illness, the other Quality Manager would not be available to do audits and the complainant would be required to do the audits on production and products and if the audits did not reach the Bord Bia or British food safety standards that he would be let go. This made him very nervous and uneasy about his position with the respondent. He did not believe that the Quality Manager was scheduled to have surgery and believed he was being set up.

On 8 October, he went as normal to clock out. He saw the HR Manager’s laptop was on. Her outlook file was open, and he saw an item heading ‘How to give a final warning’. The company did not want to help him. He saw that one of the open emails was from the receptionist in the plant advising the HR Manager that she had hidden the HR folder. The HR folder was essential to enable the complainant to perform his role as he had a training function with staff advising them on policies. He met the HR Manager in the corridor who asked him what he was doing on her computer, and he advised that he had switched it off.

On 9 October, the complainant on clocking out noticed that the Managing Director’s computer was on in her office. He knocked before entering. The General Manager had told him previously that he must turn off the computers. He accepts that he did type in his name in the outlook section. He stated that he was out of his mind with worry about his position.  He noticed an email which referred to his interest in developing products from egg whites; it stated, “that’s his game in Cootehill.” 

The cleaner entered the office and asked him what he was doing in the manager’s office. The cleaner provided a statement to the respondent and the complainant states that it was an accurate statement of events.

He was suspended on the 17 October at a meeting with the HR Manager and the General Manager. An investigation meeting followed on the 22 October with the General Manager and the HR Manager. The complainant was requested to and did attend a disciplinary hearing on the 30 October 2019. The company did not provide him with an impartial person to conduct the disciplinary hearing as he maintains that the HR Manager should not have been involved in the process. He was unable to attend the reconvened disciplinary hearing of 5 November, because he was unwell and was unable to attend the further rescheduled hearing of 7 November because the invite was sent to his Leitrim address while he was staying in Boyle, but he did send in a written submission asking that his hitherto exemplary service would be taken into account. As he was behind in his union subscriptions, he was unable to obtain their support at this stage.

The complainant states that the respondent carefully and methodically planned his dismissal. Fearing this, he asked them to provide him with a reference and advised the respondent that he had a chance of another job. The respondent told him he would not be dismissed. After he was dismissed, he was in massive shock and had to avail of medical assistance.

Appeal.

He questioned the impartiality of the Financial Controller to hear his appeal. He is unclear if he put his objections in writing to this nomination. He was not aware of the importance of the appeal against his dismissal. He wasn’t mentally or physically able to meet the appeal in December 2019.

Cross examination of the complainant.

The complainant confirmed that food safety and standards audits were part of his job.

Concerning the fact that the complainant took five weeks as opposed to the agreed 4 weeks leave, he stated that he understood from his conversation with the Managing Director that a fifth week of leave was a possibility. He accepted that a fifth week of leave was never confirmed. He was unaware that they required him to return on Monday 16 September until the night before, the 15 September. He was waiting on clarification concerning his leave request from 16 to 23 September. He maintains that the HR Manager could have telephoned him to advise that he was required   to be at work on the 16 September, particularly given that that there had been an indication that this week was a possibility.

He confirmed that he had read emails which were open on the HR Manager’s computer. To the point that he had no authority to read another employee’s mail he said he was very stressed; he had three people in the company who- as he put it- were on his case and was in receipt of 2 written warnings He was fearful for his future.

He accepted that he received a written warning for his absence without leave on 16 September

In response to the fact that he had never raised the fact that he felt stressed during August to October, the complainant stated that there was no impartial person with whom he could raise it. He also felt in complete despair at that point.

Mitigation.

The complainant secured employment from 15 February until the 31 March 2020. He earned €600 for the six-week period.

He applied for numerous jobs in construction, foo industry, general operative positions, health and safety positions.

The respondent denies that the complainant was unfairly dismissed. He was dismissed for actions amounting to gross misconduct, following a fair disciplinary process. The gross misconduct involved him accessing the computer of the HR Manager and the Managing director without any authorisation on 8 and 9 October 2019.

The HR Manager addressed previous issues concerning two instances of unauthorised leave taken by the complainant in August and September 2019.

Witness 2: HR Manager’s evidence.

The HR manager stated that the complainant informed her in late July that he wished to take a career break. She asked him to submit the request in writing. He emailed some vague details.

He applied for leave for the week commencing the 27 July and the week commencing the 5 August, then for a probable further two to three weeks’ leave from 12 August onward. The witness got no response to her email to him of 6 August or to subsequent enquiries seeking his exact return date from leave. The complainant failed to turn up for work, as expected on 26 and 27 August and did return on 28 August, offering no explanation other than he thought he could take more leave. So hence a disciplinary process was instigated. He attended a disciplinary meeting on the 30 August with the HR Manager and Managing Director. The outcome of his failure to notify the respondent of his exact leave arrangements resulted in him being issued with a written warning. He appealed this warning.

He emailed the respondent on 31 August seeking more leave and advising that his return date would be the 23 September. The respondent responded by email on 3 September advising him that his agreed leave was for week commencing the 9 September. The respondent’s email of 12 September informed him that his leave request for week commencing the 16 September had not been approved. Despite this refusal of his request, the complainant did not return to work on the 16 September; he returned on the 17 September. A second warning issued to the complainant.

The complainant was suspended on 17 October due to a separate, unconnected, non- absence from work incident. On 8 October the witness left the office at 5.45. She returned to the office to bring some work home. She discovered the complainant at her computer. She asked him if he was on her computer. He stated that he was trying to log out using her computer. He stated that he noticed the witness’s computer was on and he wished to turn it off. They do not have a policy that computers are turned off at night. She thought it strange and offered to help him should he experience problems with logging out. The General Manager told her that he had seen the complainant at a later hour, still on the witness’s computer, though at an earlier point when confronted by her, the complainant advised her that he had logged out. He accessed her computer without her knowledge and only the witness has authority to access her computer. The next day the witness emailed the complainant instructing him not to access any other staff member’s computer.

On 9 October, a cleaner witnessed him on the Managing Director’s computer.

An investigation meeting into these incidents was convened for 22 October 2020. The witness attended. He initially disputed that he was on the Managing Director’s computer until shown a statement by the cleaner whereupon he stated that he was turning the computer off. Subsequently, the IT department informed the witness that the Managing Director’s computer had been accessed at the time the complainant had been in her office. The search bar showed that the complainant had searched her emails.

He attended a disciplinary hearing on the 30 October, carried out by the Managing Director with the witness in attendance as a notetaker. He chose not to engage with a further, reconvened, second disciplinary hearing on 7 November, arranged so as to give him more time to engage a representative. He sent in a written submission.

Four unsuccessful attempts were made to convene an appeal hearing with the complainant in attendance

Cross examination of the witness.

The witness advised the complainant that the respondent bypassed a verbal warning option and called a disciplinary hearing on the 30 August as the seriousness of the misdeeds warranted this.

Legal Arguments.

The respondent asks that in circumstances where the adjudicator may determine that there could be some procedural issues surrounding the dismissal, which is denied by the respondent, it should be accepted that such issues do not necessarily negate the fairness of the outcome

In support of the Respondent’s position, the Respondent refers to Elia Erian Aziz v The Midland Health Board [1995] E.L.R. 48, where the Circuit Court held that:

“(3) While a disciplinary body exercising quasi-judicial functions is bound to adopt fair procedures, a bona fide defect in the procedures adopted is not necessarily fatal to the legality of the ultimate decision made.

(4) Where a defect in the procedure adopted or in the conduct of the proceedings is alleged, the applicant in order to succeed must establish that the complaint is well founded and that the defect complained of raises a reasonable possibility that an injustice may have been done.

(5) Accordingly, where there is no reasonable possibility that an injustice may have been done to the person under investigation as a result of the defect complained of the decision is lawful and has the same effect as it would have had if no such defect had been found”.

The Respondent also refers to the case of Loftus and Healy -v- An Bord Telecom (13 February 1987, unreported, HC) where the High Court stated that it was not simply a question of whether or not the employees were deprived of a fair procedure but rather

“whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish … [the basis of its dismissal] as the whole or main reason for justifying their dismissal”

and Pacelli -v- Irish Distillers (UD 57I / 2001) where the Tribunal stated that:

“…in determining this appeal, we must look at the substance of the complaint and beyond mere defects of form”.

The respondent submits it acted reasonably and proportionately in the circumstances of this case. They rely on the seminal case of Looney & Co. Ltd. v Looney UD843/1984, where the EAT addressed the scope of a decision-making body.

Mitigation.

Despite the impact of the pandemic, it remains the respondent’s position that should the complainant be found to have failed to mitigate his losses, he should have no great excuse for same. The complainant was in a favourable position with his area of work. The respondent relies on Sheehan v Continental Administration Co Ltd UD 858/1999. In this case the Employment Appeals Tribunal considered the obligation to mitigate one’s loss and held that: -

“A Complainant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work … The time that a Complainant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

The respondent asks the adjudicator to dismiss the complaint.

The dismissal is uncontested. The onus is on the respondent to demonstrate that it had substantial grounds to summarily dismiss the complainant on the grounds of gross misconduct and that it employed fair procedures in carrying out the dismissal on 13 November 2019.

Applicable Law.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“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 “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states

“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:

“…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a)      n/a

b)     the conduct of the employee”

Stated grounds for the dismissal.

The Managing Director in her letter of dismissal of 13 November 2019 stated that his dismissal was due to the following instances of gross misconduct:

“a) alleged interference or misuse of equipment, 

b) unauthorised possession of property when he was found accessing the HR and Managing Director’s computers to look at emails concerning his employment and

c)failure to devote the whole of his time to attention and abilities to the respondent’s business during working hours in that he was found accessing the aforesaid computers during his working hours.,

d) unauthorised access to company email and internet facilities on the 8 and 9 October”.

The respondent classifies these misbehaviours and misuse of colleagues’ private email accounts as instances of gross misconduct.

I accept that the complainant did, improperly and without authorisation, access the computer and emails of both the HR Manager and the Managing Director on the 8 and 9 October respectively.

Looney and Co Ltd v Looney UD 843/1984 in addressing the scope of a decision-making authority in determining if a dismissal was unfair held:

“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 respondent asks that I be guided by this decision.

In determining if the dismissal was within the range of reasonable responses, it is necessary to establish if the sanction of dismissal is aligned with the respondent’s disciplinary procedure which identifies three grades of misconduct, each type being subject to different sanctions. In the section on Rules Covering Major Misconduct, we find that two of the specified reasons for the complainant’s dismissal namely,

“failure to devote the whole of your time, attention and abilities to our business and its affairs during your normal working hours.

and unauthorised use of Company E-mail and Internet facilities”.

are categorised as major misconduct in the disciplinary procedure, a category of misconduct attracting lesser sanctions such as warnings, final warning. Yet the respondent elevates these improper actions on the part of the complainant to the status of gross misconduct, which permits the sanction of summary dismissal- the sanction imposed upon the complainant. Furthermore, the charge of

“not devoting the whole of his time to the company’s business by reason of accessing private emails” was done after the complainant had clocked out and so this element of the gross misconduct charge is unsustainable. A further component of the gross misconduct charge was as follows:

“interference with or misuse of any equipment.”

This is a truncated version of the relevant element of the Gross Misconduct section of the disciplinary procedure; the full sentence reads as follows:

“Interference with or misuse of any equipment for use at work that may cause harm”

The amputation of the second half of the latter sentence undermines the respondent’s contention that this amounts to gross misconduct. While the complainant’s conduct was wrong and in breach of company policy, it was his fear about his future rather than any desire to use whatever he retrieved for purposes of harming the company or the persons whose computers he had accessed.

The disciplinary procedure also provides that

“If you are in a supervisory or managerial position then demotion to a lower status may be considered as an alternative to dismissal except in cases of gross misconduct”

He was dismissed with immediate effect on 13 November 2020. The respondent proffered no evidence that a lesser sanction was considered at the disciplinary stage or at the appeal stage. Neither the disciplinary hearing concerning the improper use of computers, or the dismissal letter made any reference to the earlier warnings about the two absences, described as minor misconduct deserving of a verbal warning in the respondent’s disciplinary procedure.

Having inflated the complainant’s misbehaviour up to the level of gross misconduct, an action at odds with their own disciplinary procedure, I do not find that the respondent’s actions and decision sit within the range of responses that a reasonable employer might make.

The respondent asks that I consider Elia Erian Aziz v The Midland Health Board [1995] E.L.R. 48, which held that a bona fide defect in the procedures adopted is not necessarily fatal to the legality of the ultimate decision made.

I find it difficult to consider the misapplication of the procedures to the circumstances of the instant case to be a bone fide defect.

I therefore find that the decision to dismiss the complainant was unfair.

Conduct of the respondent in effecting the dismissal.

Relevant Law.

Section 6(7) of the 1977 Act as amended states

“(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 —

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.

The uncontested evidence is that on 17 October the HR Manager and the General Manager met the complainant. The HR Manager submitted a witness statement concerning her observations of the complainant accessing her computer. The HR Manager’s witnessing of this act was what propelled the suspension of the complainant on the 17 October and the subsequent initiation of the disciplinary procedure.  The HR Manager advised the complainant at that meeting on the 17 October that seeing him on her computer on the 8 October did not sit well with her, and he was to be suspended with an investigation to follow.

A further complication for the respondent is that the person conducting the investigation meeting on the 22 October into his unauthorised use of the HR Manager’s computer was the HR Manager herself, the person who had suspended him on the 17 October and the witness to his unauthorised use of her computer and the supplier of a witness statement. The HR Manager and the Managing Director conducted the disciplinary hearing on 30 October at which his unauthorised use of their personal computers was the subject matter. They were the injured parties -aside from the injury to the respondent’s policy. Hence, the HR Manager assumed a multiplicity of roles, that of a witness, a complainant, an investigator and a participant in the disciplinary hearing on 30 October. This disciplinary meeting at which the complainant attended was adjourned as he had been unable to attain a representative, was rescheduled for 5 November and again, due to the complainant’s ill health, was rescheduled for 7 November and was to be conducted by the Managing Director, another injured party, with the HR Manager, the witness to the complainant’s misbehaviour being the notetaker. The complainant did not attend this reconvened disciplinary hearing. Instead, he made a written submission stating that he had little to add to what he had said at the disciplinary hearing on the 30 October, asking that his exemplary work ethic and trustworthy nature over the previous three years should be taken into account in making their decision.

The Managing Director wrote to the complainant advising him that the outcome of the disciplinary hearing at which his submission was considered was to dismiss him for gross misconduct.

S.I.146/2000 requires that a disciplinary process must comply with the principles of natural justice, one of its tenets being the right to a fair and impartial hearing into the issues at hand.

The HR Manager and Managing Director had a personal stake in the disciplinary process in that it was their computers which had been improperly accessed by the complainant and it was they who had instigated the complaints against the complainant.

The need to separate persons having a stake in the dismissal of a complainant from the disciplinary process was addressed in Eugene Young v Towerbrook  Ltd., T/A Durrow Castle, UD1598/2013, where the Tribunal held that

” it was entirely inappropriate that the disciplinary process would be conducted by PS and NS the two complainants against the claimant and, in the case of PS, a principal participant in whatever engagement occurred on the 4th June 2013.”

The dismissal was found to have been unfair.

I acknowledge that small structures may have presented a difficulty for the respondent in confining one manager to one phase of the disciplinary process. But the principle that individuals , such as the HR Manager, who served as a witness to the complainant’s actions, a complainant and a participant in the suspension, investigation and disciplinary hearings, and, to a lesser extent, the Managing Director, whose computer was accessed, who conducted the disciplinary hearing and made the decision to dismiss, cannot be the decision-makers in their own case supersedes any organisational impediments to the necessary separation between those conducting  the different phases of the process.  This separation was absent.

For the above reasons and on the basis of the evidence, I find the dismissal of the complainant to be procedurally unfair.

Remedy.

I consider that compensation is the more appropriate remedy. In the period between the dismissal and the appeal, the complainant disengaged from any efforts to repair the situation.

Mitigation.

Section 7(2) (c)of the Act of 1977, as amended, requires that in considering the amount of compensation to be awarded, I must factor in the efforts made by the complainant to mitigate his loss.

The complainant submitted evidence after the hearing of having applied for 58 positions in a range of industries over a period of 20+ months. Twenty-eight of these applications occurred in the 12 months following his dismissal with the remaining 30 being submitted in the period from January 2021 onwards. The application were predominantly in areas such as Quality Control and Health and Safety. The Labour Court set out the test for proof of efforts to mitigate one’s loss in the decision of Philip Smyth V Mark Leddy, UDD1974 as follows:

“The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced, and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”.

While it is the case that the pandemic restricted the number of available positions, the complaint has not met the test set out in the decision of Philip Smyth V Mark Leddy.

I do not find that the complainant made sufficient efforts to mitigate his loss and this must be reflected in the redress to be awarded to the complainant.

Section 7(2) of the Act of 1977 as amended provides that in considering the amount of compensation to be paid, regard shall be had to the contribution of the employee to the dismissal.

I find that the complainant was insufficiently engaged with addressing the respondent’s legitimate concerns and that includes his haphazard response to leave arrangements.  The evidence reveals that the complainant was initially evasive about his role in accessing the laptops and that he assumed a cavalier attitude to the disciplinary process – a process which the respondent was entitled to initiate, and which offered the option of an appeal against the dismissal on four separate occasions. Though the complainant did submit a written appeal against the dismissal in late November, and while it is not clear what such an appeal could have delivered given the respondent’s misapplication of the disciplinary procedures, the complainant, in an act of ‘self-harm ‘, disengaged, almost completely, from any further efforts to repair or reverse the situation.

I find that the complainant’s behaviour both before the initiation of and during the he disciplinary process contributed to his dismissal and this is reflected in the redress to be awarded to the complainant.

I find this complaint to be well founded.  I decide that the respondent should pay the complainant redress to the sum of €12,000 which is equal to four months wages, an amount which I consider to be just and equitable having regard to all the circumstances.

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €12,000.

Misapplication of disciplinary procedures. Lack of impartiality.