FULL RECOMMENDATION
PARTIES : ELEMENT SIX LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-00013880 CA-00018418-001 Mr. O’ Connor, ‘the Complainant’, was dismissed by Element Six Limited, ‘the Respondent’, in April 2018, arising out of contact between him and a witness in an investigation into a matter that concerned him. The Complainant brought a complaint to the Workplace Relations Commission, ‘WRC’, under the Unfair Dismissals Act 1977-2015, ‘the Act’. An Adjudication Officer, ‘AO’, decided that the complaint was not well founded. The Complainant appealed to this Court. Summary of Respondent arguments On or about 9 September 2017, it was alleged that the Complainant was asleep while on duty or that he was taking an unauthorised break. A meeting was conducted by Mr. Pat Gibbons, Production Manager in which the Complainant denied the charge but accepted that he had his eyes closed and that his feet were on a desk. This complaint was investigated formally by Mr. Terry Scanlon, Production Manager, who informed all parties that the meeting was to be kept confidential. Mr. Scanlon concluded that there had been a breach of company policy by the misuse of company property and by a break being taken outside the allotted time. A disciplinary hearing was conducted by Mr. Mark Finn, Supply Chain Manager, in the course of which a letter was received from an agency worker with the Respondent company, Mr Arthur Gregorio, the content of which supported the Complainant’s defence argument that he was not working but on a break when he was observed with his feet on the table. Having considered all evidence, Mr. Finn held that a verbal warning should issue to the Complainant to be held on file for six months. Subsequently, Mr. Gregorio brought a complaint to the attention of Mr. John Lonergan of the agency that employed him, Eflexes, to the effect that prior to the hearing by Mr. Finn, the Complainant had approached Mr. Gregorio with the intent to influence his evidence and to transcribe a new letter. It was further alleged that the Complainant had engaged in threatening or intimidating conduct towards Mr. Gregorio. The Complainant made two calls to Mr. Gregorio. The first immediately following the hearing by Mr. Finn on 22 November 2017, at which Mr. Finn had indicated an intention to speak to Mr. Gregorio. The second call was made two days later, prior to a decision on the disciplinary outcome being communicated on 4 December 2017. The Complainant was suspended from duty on full pay. An investigation into this matter was conducted by Mr. Mark Slattery of Adare Human Resource Management. Mr. Slattery found that a conversation between the Complainant and Mr. Gregorio relating to Mr. Gregorio’s evidence had taken place on 21 November 2017; that the Complainant had produced pen and paper for Mr. Gregorio to write and sign a statement and that two phone calls took place between the two, the contents of which were disputed; that the statements made by Mr. Gregorio to the Respondent subsequent to Mr. Finn’s hearing were not made under any duress; that the Complainant usually clocked in 9 minutes before his shift began but on 21 November 2017, he did so 21 minutes before his shift, which matches the date of the incident described by Mr. Gregorio. The investigator found that the Complainant did not try to follow or talk with Mr. Gregorio on 4 December 2017 and that, given the contradictory evidence, he could not determine if Mr. Gregorio was subject to threatening or intimidating behaviour. The Complainant was required to attend a disciplinary hearing chaired by Mr. Ger Begley, General Manager, regarding alleged coercion and intimidation of a fellow employee and the alleged misleading of a disciplinary hearing, both of which were stated to be charges of gross misconduct. The Complainant was allowed to be represented and was afforded the right to cross examination. Mr. Begley concluded that the Complainant did coerce and intimidate Mr. Gregorio. He also concluded that in procuring a statement from Mr. Gregorio, the Complainant was guilty of misleading a disciplinary hearing. He decided that the Complainant should be dismissed. The Complainant was afforded the right of appeal. His appeal was heard by Mr. David Hanley, Site Manager, who upheld the decision. He was dismissed from 5 April 2018. The Respondent applied a very thorough and detailed process that meets the requirements set out inKilsaran Concrete v. Vet UDD 11/2016.The procedures used focused on natural justice and the right to reply. The Respondent was mindful that Mr. Gregorio is a foreign national and that as perCampbell Catering Ltd. v Aderonde Rasaq EED048,there are additional duties of care towards foreign workers involved within such a process. Hence, Mr. Begley sought to speak directly to Mr. Gregorio and permitted cross examination of him to ensure that the best evidence was being heard, mindful ofLyons v. Westmeath Education and Training Board (2017) IEHC272.It is perverse and at odds with the law to suggest that there was fatal fair procedural overload because named witnesses were interviewed again at the disciplinary stage to clarify issues that arose at the investigation stage. As perDunnes Stores v Kati Kipli (UDD203),which referencedShortt v Royal Liver Assurance Ltd.,[2008] IEHC332any ‘..deficiencies in the Respondent’s procedures were not of such gravity as to imperil the fairness of the process.’ The facts in this case are straightforward. The outcome was in the ‘range of reasonable responses’ and other potential sanctions were considered. The outcome was fair and proportionate. Summary of Complainant arguments The Complainant worked for the Respondent from 1987 to 2018 as a Shift Processor. At the initial disciplinary hearing, a letter from Mr. Gregorio was produced to say that he did not see the Complainant’s legs on his desk before the scheduled break time. It transpired at the hearing that Mr. Gregorio had been interviewed and had previously said that the Complainant was asleep. No minutes of this interview were given to the Complainant. Later, on 4 December 2017, Mr. Gregorio provided Mr. Gibbons with a handwritten statement alleging that, on 21 November, the Complainant had asked him to write a letter for use at the hearing. He stated that the Complainant had also telephoned him on 22 and 24 November and that, on 4 December, the Complainant had followed him, so that he felt threatened and nervous at work. During Mr. Slattery’s investigation, the Complainant accepted that he had contact with Mr. Gregorio on 21 November but denied having asked him to change his evidence. On the contrary, he had asked Mr. Gregorio to put in writing what he had said to the Complainant. He accepted that he had called Mr. Gregorio on 22 November to thank him for making his statement and on 24 November to inform Mr. Gregorio that a colleague, Mr. James Freeman, was also a witness. He denied following or intimidating Mr. Gregorio. The Complainant gave evidence that Mr. Gregorio had told him that he had told Mr. Gibbons that he had not said what he was alleged to have said and also that he had heard ‘on the floor’ that Mr. Gregorio was telling people that he did not say it. He had asked Mr. Gregorio to put that in writing. Mr. Lonergan of the agency attended the investigatory meeting at which Mr. Slattery interviewed Mr. Gregorio and appears to have answered some questions on his behalf. Mr. Freeman, an employee of 30 years’ standing, told Mr. Slattery that Mr. Gregorio had told him that his verbal statement to Mr. Gibbons was not reflected in the written statement. In his findings, Mr. Slattery stated that he could not determine whether or not Mr. Gregorio was subject to threatening or intimidating behaviour and did not come to a specific conclusion as to whether the Complainant had approached Mr. Gregorio with the intent to influence him to amend evidence. Despite Mr. Slattery’s conclusions. The Complainant was invited to a disciplinary hearing, the terms of reference for which provided for further interviews to establish ‘factual events’. The Complainant’s union sought clarity as to whether the charge of ‘misleading a disciplinary meeting’ had been the subject of an investigation? The Respondent replied to say that, based on the investigatory report, the company view was that the Complainant had misled the disciplinary Chair, by obtaining a statement through coercion and intimidation of a fellow employee. An unsigned and undated document stated that it was the view of the company that the Complainant was not approached as he claims but, in fact, he approached Mr. Gregorio and that the company aimed to highlight inconsistencies in the Complainant’s behaviour. The so-called ‘Investigating Chair.’ was Mr. Ger Begley, the General Manager. He conducted what was, in essence, further investigatory interviews at which two managers were invited to give the company’s position. The Complainant’s union rep. was asked by Mr. Begley at one point if he was questioning the Chair’s neutrality. Under cross examination, Mr. Gregorio accused Mr. Freeman of lying and he gave no coherent answer when asked who he was saying had threatened him. Mr. Freeman gave evidence which was consistent with that given to Mr. Slattery. Mr. Gregorio was again ‘represented’ by Mr. Lonergan of the agency when interviewed by Mr. Begley on 14 February 2018, when he said that Mr. Lonergan had not told him what to write. Mr. Begley, no longer ‘Investigating Chair’ but now, ‘Chairman of the Disciplinary Hearing’, wrote to the Complainant on 9 March 2018 to notify him of his decision to dismiss the Complainant on grounds of gross misconduct. Five of the pages of this notification are, in effect, an investigation report, (there is very little reference to Mr. Slattery’s report). Having made numerous findings of fact, Mr. Begley concluded that the Complainant had coerced and intimidated Mr. Gregorio and that he was guilty of misleading the earlier disciplinary hearing. In the subsequent appeal hearing, Mr. Hanly took it upon himself to conduct a further investigatory interview with Mr. Jim Donnellan, the shop steward. Under the act, the Court is required to consider if the decision to dismiss the Complainant was reasonable. It is not the function of the Court to establish the guilt or innocence of the employee. InBank of Ireland v. Reilly [2005] IEHC241the High Court held that the question to be determined is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned. As perPottle Pig Farm v Panasov UDD1735,a failure to investigate properly allegations of misconduct or to afford a fair opportunity to advance a defence takes the decision to dismiss outside of the range of reasonable responses. The decision in this case falls outside the range of reasonable responses. It was not reasonable for the Respondent to put allegations to the Complainant, to appoint Mr. Slattery to conduct an investigation and,after he could not come to a conclusion that he could establish facts to substantiate the allegations, to institute disciplinary proceedings regardless. InGeorgopoulus v Beaumont Hospital [1998] 3 IR 132,it was noted that in the case of employment investigations, the facts upon which allegations are based do not have to be established beyond reasonable doubt and can be dealt with on the balance of probabilities ‘bearing in mind that the degree of probability required should always be proportionate to the nature and gravity of the issues to be investigated’. The nature and gravity in this case are charges of gross misconduct leading to dismissal of an employee after 28 years’ service and should have been viewed at the upper end of the spectrum. In this case, the employer did not consider the investigation report and reject it but, rather, stated in the disciplinary terms of reference that there were still unanswered questions. The decision to re-investigate in this case was unfair and unreasonable. The Respondent never suggested that the outcome of Mr. Slattery’s investigation was unsound nor did it refer the matter back to him. The report was rejectedsub rosaby the Respondent because it did not provide grounds for dismissal. The subsequent re-investigation by the General Manager was not independent. The Respondent’s own disciplinary procedure makes no provision for repeated investigations to be held until the ‘right’ result is obtained. There was no proper separation of the investigatory and disciplinary procedures. Having decided to re-investigate the exact same charges, the Respondent appointed the General Manager as both ‘Investigating Chair’ and ‘Chairman of the Disciplinary Hearing’. The process followed did not reflect the Respondent’s disciplinary process, which separates the investigatory and disciplinary procedures. The circumstances of this case are very similar to those inJoseph Brennan Bakeries v Rogers UDD1821,in which the multiplicity of roles of the General Manager in initiating an investigation and overseeing the procedure himself was held to call into question the fairness of the procedure. In this case Mr. Begley conducted the re-investigation and was the decision maker in determining that the Complainant should be dismissed. The Respondent did not adhere to its own procedures and did not follow the relevant LRC Code of Practice. Natural justice was breached by the initiation of disciplinary procedures after Mr Slattery’s report. The hybrid investigation/disciplinary process was a breach of these principles and unfair. The employer had decided the outcome before the process conducted by Mr. Begley. The failure on his part to put the conclusions of his investigation to the Complainant was also a breach. The undated and unsigned document referred to above is an extraordinary rant. It is described as the ‘Company position regarding the call to Disciplinary of Pat O’ Connor’. The only ‘ company’ is Element Six. Therefore, the employer had reached its conclusions and put them to Mr. Begley. It was not reasonable of them to reach a conclusion. It was pre-judgement. Mr. Begley was not presented with an outcome of an independent investigation into facts. He was presented with his employer’s clear position that the Complainant was guilty of gross misconduct. It was also unfair for the process to be conducted in the form of an adversarial hearing in which company representatives were invited to make a case against the Complainant. Instead, the outcome of the investigation should have been put to the Complainant. However, Mr. Begley was, himself, investigating. This is a clear breach ofaudi alteram partem. It is significant that more questions were put to the Complainant’s representative than to those of the Respondent, which suggests that the unsigned document was accepted uncritically by Mr. Begley. At all stages, the evidence of Mr. Gregorio that is detrimental to the Complainant was produced under the supervision of Mr. Gregorio’s employer. When he was asked who threatened him, Mr. Gregorio did not give a direct reply. Witness Evidence Mr. Artur Gregorio Mr. Gregorio gave evidence that he worked as an agency worker as a Process Machine Operator for the Respondent. The witness said he knew the Complainant only as a colleague and that he had no contact with him outside work. He outlined how he had replied to a query by a manager the day after the event to confirm that he had seen the Complainant asleep while at work on the previous day. Subsequently, the witness said that he was approached by the Complainant who asked him for a favour. The Complainant had given him a pen and paper and dictated to him a statement to put in writing that he had not seen the Complainant asleep on the occasion concerned. He had written the note. The witness accepted that he had not been forced to sign. At a later date, the witness said that he got two telephone calls from the Complainant. He did not know how the Complainant obtained his number and he was reluctant to answer the first call because he did not know who was calling. The witness said that he declined the request by the Complainant to meet him following the calls and made excuses not to do so and that he, otherwise, avoided the Complainant. Under cross examination, the witness denied that he had approached the Complainant initially prior to writing the note in question. The witness said that he did not feel threatened but he did feel intimidated. The witness said that he retracted the terms of the note because he was not a permanent staff member and he wanted to avoid being brought into the matter. The witness said that people in the employment were watching and questioning his movements, that he had been approached by friends of the Complainant and that he had been nervous. The witness accepted that, at the time, Mr. O’ Connor was suspended from the employment and that he had not been watching him. He accepted that the Complainant had not threatened him. The witness accepted that in his statement to the investigator, he had only referred once to feeling intimidated by the Complainant. When it was put to him that the investigation did not uphold the claim of intimidation, the witness said that he had not seen the report. In response to questions from the Court, the witness said that he could not recall the exact dates of the telephone calls from the Complainant. Mr. Ger Begley Mr. Begley gave evidence that his first involvement in the matter before the Court was when he was asked to chair the disciplinary hearing. The witness said that there were two matters for consideration i.e. alleged coercion/intimidation of a witness and also interference in a disciplinary process by misleading an investigation. The witness said that he received the investigation report and interviewed various relevant parties. The allegations were put to the Complainant, who was represented throughout and was permitted to cross examine. The witness said that the Complainant and Mr. Gregorio agreed on some matters i.e.that they had met the day before the hearing, that the Complainant had produced pen and paper for Mr. Gregorio, that it was not usual for them to stop and inter-act and that Mr. Gregorio had written the note. There was disagreement between them as to who had made the approach. However, he noted that the Complainant had reported to work unusually early on the day concerned and, by so doing, had over-lapped with the conclusion of Mr. Gregorio’s shift. The witness noted that there was disagreement about where the inter-action took place, with both saying that it occurred at their own work station. Mr. Gregorio said that the Complainant had dictated the note but the Complainant said that Mr. Gregorio had offered to help and that the Complainant had walked away and left Mr. Gregorio to write the note. The witness noted that the paper used was unusual. The witness said that Mr. Gregorio had told him that, after he had written the note, the Complainant had asked him to say that the Complainant had never asked him to write it. At the hearing that followed, Mr. Finn, who chaired it, had said, when presented with the note, that he would need to speak to Mr. Gregorio. That hearing finished about 4.30pm and later that day at about 7pm, the Complainant telephoned Mr. Gregorio. It appears that he got the number from another colleague. The Complainant’s explanation for the call was that he wanted to meet Mr. Gregorio to thank him. Both of them agreed that Mr. Gregorio did not want to meet. The Complainant called again two days later. His explanation was that he was returning a call. However, the witness said that an examination of Mr. Gregorio’s records do not show a call to the Complainant. The Complainant said that the second call was simply to convey thanks and to keep Mr. Gregorio ‘in the loop’, including with details of another witness. Both agreed that Mr. Gregorio did not engage and declined to meet the Complainant. Mr. Gregorio denies that information regarding another witness was shared with him during the call. The witness said that on the balance of probabilities he decided that both charges were substantiated. He did so because the Complainant had instigated at least two of the three ‘meetings’ with Mr. Gregorio, that he had produced the pen and paper and that he was the only one of the two who stood to gain by initiating the first inter-action. The witness said that he did not find it credible that Mr. Gregorio would approach the Complainant as they were not friends. He concluded that Mr. Gregorio just wanted the matter to go away. The witness said that, having found that the charges were valid, he considered the appropriate penalty. He considered alternatives but the actions of a long-standing employee putting pressure on an agency worker who had poor English in order to interfere with a process were actions inconsistent with the values of the company, they were pre meditated actions, they were at the upper end of the disciplinary scale and he could not see how the Complainant could retain the trust of the company. For these reasons he decided that dismissal was appropriate. Under cross examination, the witness accepted that his finding was not fully consistent with the wording of the charges put to the Complainant but he said that was not a major difference. The witness said that he had no involvement in the earlier investigation. He could not comment on suggestions of a parallel process. He had first seen the company’s position when it was provided to him at the hearing. It was put to him that there was no reference to ‘coercion’ in Mr. Gregorio’s statement. The witness said that Mr. Gregorio had said that he felt ‘intimidated’ and that there were three instances of contact with the Complainant. It was put to him that Mr. Gregorio only made one reference to intimidation and that was in respect of a call that he received at home. The witness said that the question was why did he call? Then, the question was, when Mr. Gregorio showed no interest in engagement, why did the Complainant call again? The witness said that he felt it was even more intimidating for Mr. Gregorio to get calls at home. A question was put to the witness as to why, given that the investigation could not conclude that intimidation had occurred, he had reached that conclusion? The witness denied that his finding was contrary to the findings of the investigation. He said that he had to satisfy himself if there had been a breach of trust. The witness was unable to say if the Complainant would have been dismissed even if he had concurred with the investigation outcome that it was not possible to conclude if there had been intimidation and if the only issue was one of inappropriate contact with a witness. Mr. Patrick O’ Connor Mr. O’ Connor is the Complainant. The witness said that he worked for the Respondent from November 1987. He confirmed that he had a clean disciplinary record. The witness said that Mr. Gregorio had approached him, that he had enquired of the witness how the case was going and that he had informed the witness about what was happening. Mr. Gregorio said that he did not agree with what was being attributed to him. The witness said that he asked Mr. Gregorio if he would put that in writing and Mr. Gregorio had agreed. The witness said that he had not coerced Mr. Gregorio. He denied misleading the enquiry. With regard to the telephone call to Mr. Gregorio on 22 November, the witness said that this was made to thank Mr. Gregorio. The subsequent call on 24 November was to advise Mr. Gregorio that Mr. Freeman had come forward as a witness. The witness said that Mr. Gregorio had told Mr. Begley that the witness was noce and polite to him. In cross examination, it was put to the witness that he was an experienced union shop steward. The witness said that he was not really familiar with the Respondent’s disciplinary procedures. He accepted that he was aware of the right to cross examine witnesses. He said that he had not been given this right at the investigation stage and noted that the first such cross examination of Mr. Gregorio had occurred at the WRC hearing, at which Mr. Gregorio had said that the witness had not coerced, threatened or intimidated him. The witness accepted that he was usually about 9 minutes early for his shift. On 21 November he was 21 minutes early because he had been up and about due to his child being ill. He denied coming in early so that he could talk to Mr. Gregorio and posed the question as to why he would have waited until that day to do so as he had known from 17 November what Mr. Gregorio was saying. It was put to the witness that the approach by him was made as there was a hearing the following day. The witness reiterated that Mr. Gregorio had approached him and had told the witness that he was concerned about the witness. When asked about prior engagements with Mr. Gregorio, the witness said that they used to meet ‘on the floor’. When asked if he did not think it improper to speak to Mr. Gregorio, the witness said that Mr. Gregorio had told him that he did not agree with what Mr. Gibbons was saying. He said that Mr. Gregorio had come to his work station. He asked Mr. Gregorio if he was willing to put what he was then saying down on paper. He had the paper on his work station. He thoroughly denied dictating what was written. When asked what benefit there was to Mr. Gregorio, the witness said that he was under pressure because he disagreed with Mr. Gibbons. The witness said that he got Mr. Gregorio’s number from somebody on the ‘floor’ and thatwhen workers were on the same shift, they would need to talk about turning off machines so they would have relevant telephone numbers. When asked if he had requested Mr. Gregorio to meet him when he had made the first call, the witness agreed that he could have as he wanted to thank him. When asked if zero contact would not have been better, the witness said that Mr. Gregorio had been concerned for him. The witness noted that the investigation had established that he never chased or threatened Mr. Gregorio. When asked if he would contact Mr. Gregorio now if circumstances were repeated, the witness said that Mr. Gregorio had volunteered information and, therefore, asked ‘why not?’ The witness said that he had been on Jobseekers’ Benefit for 7 months following his dismissal, on Illness Benefit from November 2018 for about 2 years and was currently on a training course. The witness denied the suggestion that his pattern of job applications in tandem with hearings of the case had any significance and said that he applied for jobs as they arose. In response to questions from the Court, the witness stated that Mr. Gregorio had ‘volunteered’ to put his statement in writing, after the witness had asked him if he was willing to do so. The witness denied dictating text to Mr. Gregorio. When asked why Mr. Gregorio would say that he had, the witness speculated that he might have had pressure from the company to do so but he accepted that there was no evidence of this. He said that he knew Mr. Gregorio in the workplace only and that they did not socialise together but said they often chatted in work. The witness accepted that he had been told to keep confidentiality in respect of the initial investigation. The witness said that he had given Mr. Gregorio’s statement to the union Shop Steward to pass on. The witness said that he felt that Mr. Gregorio had possibly been under pressure from the company to give the evidence that he had given to the Court. When asked why the Respondent would want to do this the witness said that he had been Chair. of the union in 2009 when there had been conflict with the company. When asked if this was a factor, why it had taken 9 years for the company to act in this way, the witness was unable to say. The Applicable Law Unfair Dismissals Act 1977-2015 1. “ dismissal”, in relation to an employee, means— ( a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee Unfair dismissal. 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. (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. 14.— (1) An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee. (2) Where there is an alteration in the procedure referred to in subsection (1) of this section, the employer concerned shall, within 28 days after the alteration takes effect, give to any employee concerned a notice in writing setting out the procedure as so altered. (3) The reference in subsection (1) of this section to a procedure is a reference to a procedure that has been agreed upon by or on behalf of the employer concerned and by the employee concerned or a trade union or an excepted body within the meaning of the Trade Union Act, 1941 , representing him or has been established by the custom and practice of the employment concerned, and the references in subsection (2) of this section to an alteration in the said procedure are references to an alteration that has been agreed upon by the employer concerned or a person representing him and by the employee concerned or a trade union, or an excepted body, within the meaning aforesaid, representing him. (4) Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the principal grounds for dismissal, but, in determining for the purposes of this Act whether, in accordance with the provisions of this Act, the dismissal was an unfair dismissal, there may be taken into account any other grounds which, subject to the provisions of this Act and having regard to all the circumstances, are substantial grounds justifying the dismissal. Deliberation In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissalthe test for this Court is that which was set by Lord Denning in the British case ofBritish Leyland UK Ltd v. Swift (1981) IRLR 91, a test which was confirmed in thisjurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall within the ‘band of reasonableness’? In the instant case, the Court is not concerned with the initial complaint against the Complainant. That matter was disposed of with a verbal warning, in full accordance with the Respondent’s disciplinary procedure. Rather, the dismissal arose because of the judgement by the Respondent regarding the inter-actions between the Complainant and Mr. Gregorio, who was a witness in respect of the initial complaint against the Complainant. The Court heard evidence from both Mr. Gregorio and the Complainant. The Court can find no reason to disbelieve the account of events given by Mr. Gregorio. However, the Complainant’s representatives has drawn attention to the shortcomings in the procedures undertaken by the Respondent and has noted discrepancies between the procedure used and the Respondent’s own written procedure. These are valid observations and the question for the Court to consider is whether the undoubted failings in the procedures used render as unfair the decision to dismiss the Complainant. The Complainant’ representative refers to the observations of the Court in Pottle Pig Farm v. Panasov UDD1735, as follows; The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair. In that case, the Court took the view that there was not a proper investigation. In the instant case, the facts are different in that there was an investigation, the outcome of which noted contact between Mr. Gregorio and the Complainant at a time when the initial complaint was being processed but the investigation report was inconclusive as to whether Mr. Gregorio was subject to threatening or intimidating behaviour. There is no doubt that the subsequent action of the Respondent in conflating investigatory and disciplinary processes was, to put it mildly, unusual and worthy of considerable scrutiny. The Complainant’s representative compared this unusual action with the case of Joseph Brennan Bakeries v. Rogers UDD 1821. However, in that case, an investigation was initiated by a manager who oversaw the subsequent process. In the instant case, there is no suggestion of any direct involvement by Mr. Begley prior to him chairing the process that led to the decision to dismiss. That is not to say that the unusual action of the Respondent is not worthy of critical examination by the Court. There is no doubt that the Respondent had facts upon which it could, validly, engage in a disciplinary process in that the investigation had established as a fact that there had been contact between the Complainant, the subject of an investigation, and a witness, Mr. Gregorio. Equally, it had been made clear to the Complainant that the process was confidential. Likewise, when the Complainant was summoned to participate in the process chaired by Mr. Begley, it was made clear to him that two issues were the focus of the process i.e. threat/ intimidation AND misleading an enquiry. Further, it was made clear that both offences were regard as gross misconduct. On the other hand, there was evident confusion and conflation on the part of Mr. Begley regarding the separate processes of investigation and disciplinary consideration. The Court is clear that an employer that receives an incomplete or inconclusive investigation report is quite entitled to engage in further enquiries to establish facts. Likewise, where facts have been established, an employer is entitled to act on them. The difficulty in this case is that the Respondent sought to do both at once, subsequent to receipt of Mr. Slattery’s report. The question for the Court is whether this undeniable process flaw rendered a fatal blow to the Complainant’s rights? While the Court would be highly critical of the Respondent, ultimately the requirement on the Court is to determine if the decision to dismiss was within a band of reasonableness. In this regard, the fact that there was contact between the Complainant and a witness in a process involving the Complainant, contact that both the Respondent and the Court are satisfied was initiated by the Complainant, despite all parties being aware of the confidentiality of the process, led to an enquiry being misled and raised significant issues of trust for the Respondent with regard to the Complainant. The fact that the investigation by Mr. Slattery was inconclusive as to whether Mr. Gregorio was intimidated or threatened need not be decisive for the Respondent in considering whether the inappropriateness of contact was a basis for dismissal. Mr. Gregorio told the Court in evidence that he was not threatened by the Complainant although he did state that he felt intimidated which is, arguably, to be expected in situations where a witness is approached by somebody under investigation. The format of Mr. Begley’s process was unsatisfactory in a number of respects, not least in inviting ‘the company’ to pitch up against arguments made by the Complainant rather than give consideration to facts established in Mr. Slattery’s investigation. However, the Court does note that at all stages the Complainant was afforded the opportunity to defend himself and was represented throughout. On balance, the Court accepts that the process flaws were not fatal to the fair consideration of the charges against the Complainant, not least because it is an established fact that there was contact between the Complainant and Mr. Gregorio, that this, itself, was a valid ground for disciplinary action and because it was reasonable for the Respondent to conclude that this contact was initiated by the Complainant. In addition, while there were significant imperfections in the process, the Complainant was afforded all of his rights and his arguments were taken into consideration. While the decision to dismiss an employee in the circumstances of this case, where the Complainant has such significant levels of service, might appear to be at the outer edge of the range of a band of reasonableness, the Court accepts that the decision to do so is within a band of outcomes that might be considered by a reasonable employer. It is not for this Court to substitute its view. In reaching this finding, the Court is mindful of the flaws in procedure but does not consider these to render the dismissal as unfair, for the reasons set out above. Determination The Decision of the Adjudication Officer is upheld.
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