Complainant

Respondent

Parties

Sylvia  Hallahan

Sanmina Ireland Unlimited Company

Representatives

Neil Rafter, BL instructed by Kenny, ~Stephenson and Chapman Solicitors

James Cleary , IBEC Executive

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00041196-001

24/11/2020

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 24 November 2020, the Complainant, a Company Operative from March 2003, submitted a complaint of Unfair Dismissal from her position on 29 July 2020. The Complainant worked a 40-hr week for €450.74 gross weekly pay. The Complainant found new work on a part time basis in February 2021 on €11.99 per hour for 19 hr week.

The Respondent operates a medical device business of 500 employees. The Respondent has submitted that the Dismissal in the case fell within the exceptions permitted to them in accordance with Section 6(4) of the Act. The circumstances surrounded an incident which on application of fair procedures and natural justice was found to constitute gross misconduct from where the Complainants employment was terminated.

Both parties were represented at hearing. On January 11, 2022, I canvassed the parties for written submissions, which incorporated a chronology The Respondent submitted a comprehensive written submission. The Complainant presented their case through the complaint form and direct evidence.

The Complainant was the sole witness in her case and the Respondent had 4 witnesses.

The Parties were permitted a brief time to talk. The case moved forward without resolution at that juncture.

The last documentation on Company Policies was received from IBEC on 31 January 2022.

The Respondent Representative outlined that the circumstances of the case arose in the course of a night shift over 29 and 30 April 2020.

Graffiti was discovered by Ms A, a colleague shift worker, on a toilet cubicle door within the female bathroom. The incident was reported to Security at 05.30hrs and escalated to Human Resources.

The Graffiti comprised the statement:

Ms M, the most hated person in X (the company)

This was viewed as an offensive statement against a Supervisor at the Plant

The Respondent secured CC TV footage, entry logs and 25 employees were signalled as being in the general area and in close proximity to the bathroom.

The Respondent commenced an informal interview process to ascertain “did anyone see if there was anything obvious to note? “

This occurred during the National Lockdown in May 2020.

28 employees were invited to provide a witness statement via a joint meeting with Human Resources. The Respondent submitted that the Complainant responded differently to her colleagues at this forum. The overall response had been engaging and supportive with a stated disappointment at what had occurred. The Complainant presented as reluctant to return to the site and sought clarification on the payment for attendance.

The Respondent commissioned a handwriting expert, Ms B and concerns had emerged on inconsistencies within the submitted witness statements.

25 employees from within the pool of those present on the night were requested samples of their handwriting The Respondent received a report which indicated

that the Complainants sample specimen “bore moderate evidence for the proposition that the author of the original graffiti was the claimant “

This was followed by a Report which indicated a distinct match between the sample and the graffiti in the complainant’s case. the evidence marked as “strong evidence “

The Internal investigation conducted by the Respondent stated that the matter merited referral to the Disciplinary stage.

The Disciplinary Hearing occurred on July 23, 2020, the Complainant was accompanied by her sister and concluded by means of a Disciplinary outcome meeting on 29 July 2020

1 two graphology reports showed moderate and strong evidence that the Complainant was the author of the graffiti

2 There were Inconsistencies in the Complainants statements

3 CCTV and Entry logs did not match her statement on going to the bathroom at 3am

4 The Complainant had distanced herself from confirming awareness that the graffiti was about Ms M

5 A witness statement placed her in a cloakroom where she told a colleague to be quiet on the topic of the graffiti in Ms Ms presence. The Complainant was silent on this until 3 July

6 The colleague who discovered the graffiti, Ms A had not mentioned that she had informed the complainant of the graffiti

7 CC TV footage could not corroborate a conversation attributed to Ms A

The Complainant was found on the balance of probabilities to be the author of the graffiti and held to be in breach of the Disciplinary code by way of gross misconduct.

The Complainant was dismissed on July 29, 2020.

The Complainant appealed the decision on 4 September 2020 and the c complainant was legally represented. The Complainant continued to deny any involvement in the graffiti incident. the appeal was unsuccessful.

The Respondent contended that the decision to dismiss the complainant was both fair and reasonable arising from her conduct. She was afforded fair procedures by means of investigation, disciplinary hearing, and an appeal. The parties engaged on 7 occasions during the process The Complainant had acted in a manner which caused the Respondent to lose faith in her and rendered the continuation of her employment impossible.

The Respondent also contended that the Complainant had contributed significantly to her dismissal and should not be permitted any redress under the Unfair Dismissals Act 1977-2015.

The Respondent was wholly opposed to any plea for re-instatement as outlined by the complainant on the complaint form. It would be impossible for her to return to the workplace.

Evidence of witnesses for the Respondent:

Mr H, Head of Engineering

Mr H told the hearing that he was requested to Investigate the Graffiti incident on June 7/8, 2020. He explained the time log recording system where swipe cards activate electronic entry and egress. He considered the data available, the time logs, cc tv and one graphologist report.

The CC TV footage placed the complainant in the area of the female bathroom for 3 cc tv snap shots 4.45-4.55 am on the night of 29 April.

He requested a second handwriting handwriting sample to back up the earlier finding of a moderate connection concerning the complainant.

The second sample yielded a finding of a “strong indication “

As a result, he had no doubt that the writer of the graffiti was in fact the Complainant.

During cross examination, Mr H confirmed his credentials in Engineering to Ph D level. He was not acquainted with the Complainant. He had a proven competence in “root cause analysis investigations”. He freely admitted that he was not a handwriting expert.

He re-affirmed that the finding of a moderate connection between the complainants handwriting sample and that of the door graffiti was insufficient and further sampling was requested and required.

He confirmed that he proceeded on the finding of “strong evidence “and disputed that it had not been conclusive in identifying the author.

He was unaware if the bathroom was regularly checked but the complainant was placed in the vicinity of the bathroom area at 4.51 am The Investigation had considered an unspecified number of hours of CC TV footage prior to that There was no indication of male involvement. The female staff were checked.

He clarified that the swipe card confirmed entry but not egress. He expressed the opinion that the Graffiti was reported promptly on the discovery and in response to counsels’ question, stated that he believed the cleaning staff would have reported it in advance of the commencement of the shift had it been in place.

He confirmed that the contract cleaners had not confirmed the presence of graffiti in redirect with the Respondent Representative.

In clarification, Mr H confirmed that Security is directly employed at the business. He explained that a shift is made up of the Organisation of a shift leader, operatives, quality technician and shift supervisor.

He confirmed that Ms X, a Human Resource Official had identified the Complainant on CC TV, which did not cover the internal bathroom area.

Mr H confirmed that the incident was not committed to an Incident Report form.

He confirmed that the Complainant had worked continuously at the business between the occurrence of the incident in April and July 2020.

He confirmed that she was the sole employee interviewed during his investigation. He had not placed a weighting on the complainant’s denial.

Mr H accepted that the Complainant was a nervous person, but he could see that significant discrepancies had emerged in time sequencing from the complainant and in the medium in which she was made aware of the occurrence of graffiti. This inferred that she knew of the incident much earlier in time

 When asked if he thought that her nervousness may have contributed to the highlighted inconsistencies? He   added that he was certain that the Complainant was in the vicinity of the bathroom during her visits from her work base.

Evidence of Ms B, Director of Human Resources

Ms B confirmed that she is presently engaged in a different role but for the purposes of this case was Head of Human Resources in Ireland.

She confirmed that all staff had Dignity at Work training yearly -18 months intervals.

She attested to the Company culture as one of “a local feel” and team-based set against the manufacturing objectives which were high volume. Employees tended live near their homes and respect ram through the regulated business

She recalled 30 April 2020 as Holy Thursday. A HR colleague shared details of the graffiti incident. She heard that Ms M was both shocked and disappointed.

Ms B was stunned and shocked as what she heard was so sharply in contrast to the provisions of the Dignity at Work Policy.

She said the company responded in a logical and methodical way.

Ms B learned from Ms Ms Manager that she was very distressed.

The Respondent planned to investigate the occurrence under the auspices of Health and Safety and Dignity at Work through

1 handwriting expert

2 time in attendance records

3 who was there

4 written statements

She said the Respondent followed the data. through cc tv, security, the three separate breaks over the shift, canteen logs and the graphologist

Employees signatures were sought for the first sampling. The first report reflected 25 examples of female signatures.

During cross examination, Ms B clarified that she was not involved as a decision maker in the case. She said two teams interviewed staff 1 interviewed and 1 acted as a scribe over the 3-day good Friday to the following Tuesday.

It was female staff centric as the area was only accessible by females.

The CC TV footage of corridor did not identify anyone. The camera indicated somebody as going in and out was this was not discernible at a distance.

Ms B submitted that the incident was highly impactful at the plant. She told the hearing that Ms M had learned of the incident at 7 am from an unnamed source.

The Respondent interviewed everyone on the shift inclusive of Ms M, who was treated sensitively out of respect for the overarching duty of care to her. Her handwriting was also sent to the graphologist. Ms M was unable to identify anyone who might have written the graffiti.

Ms B clarified that Ms M, and the Complainant were located in separate departments at the plant. She could not say if their paths crossed outside of them being on the same shift.

She did not answer when counsel asked whether the complainant had a motive to complete the graffiti.

Ms B was unaware of any prior complaints against the complainant. She said that she could not speak to her character when asked whether completion of graffiti was out of character for the complainant.

Ms B said that the Operations Team discovered the graffiti. She did not accept that the Respondent had insufficient information on which to conclude that the complainant had completed the graffiti and relied on the “strong evidence “in the mid-tier graphology report

In re-direct, Ms Confirmed that the CC TV footage was high definition.

In clarifications. Ms B did not identify her observed breach of the Dignity at Work Policy.

She confirmed that Ms M, as shift leader, was provided with time away from the business and she had requested to be kept informed of developments.

Ms B clarified that when the Respondent commenced preliminary inquiry, the staff were phoned and asked to discuss the graffiti incident, to share information and whether they had seen anything unusual? the staff were not shown the photographs

The Respondent had responded quickly by closing off the toilet and the graffiti was photographed to preserve it. The incident had not been recorded on an incident form.

Evidence of Mr D, Decision Maker on dismissal

Mr D is Director of Operations and has been with the business for 17 years. He held two meetings with the Complainant in the aftermath of the investigation.

Mr D recalled that the complainant presented as nervous and talkative. She was clear in her answers but presented as confused at intervals.

He considered the preliminary meetings, the CC TV, the logs, and the graphologist reports and this threw up one suspect and there was no doubt for him that the complainant had written the graffiti

He was struck by the changes in the conversational content of the complainant’s contribution to the process.

He contended that the circumstances fitted the description of gross misconduct as this was intimidating behaviour, for which the company had a clear zero tolerance.

During cross examination, Mr D confirmed that he was acquainted with the complainant as a member of the Operations Team

He clarified that he was experienced in the operation of the Company Disciplinary procedure.

He prepared thoroughly and determined that a Disciplinary hearing was required. The Investigation had concluded that the Complainant was the author of the graffiti and indicated the next stage of Disciplinary review.

Mr D outlined that he had met with the Complainant and sought to understand her opinions. He sought additional data.

The second graphology report was more definitive.

He drew from this in concluding that it was highly probable that the Complainant was the author of the graffiti. He found this conclusive and there was no other evidence.

He dismissed the the vacuum in exploring the handwriting of the male staff as to whether they could have been participants in the incident. He stated that in all his long service men had not entered the female bathroom

He denied that the decision to dismiss the complainant was pre-determined as he contended that the complainant was provided with a full opportunity to disclose pertinent information.

He provided a context for the sanction of dismissal as appropriate for Employee intimidation.

In redirect with the Respondent representative, Mr D reaffirmed that the Complainant was provided with all information and requested to provide any further information at hearing.

By way of clarification, Mr D said that he had considered measures short of dismissal, but the matter of gross misconduct was just too serious.

He clarified that he had not explored the working relationship between Ms A and the Complainant but had considered the impact of the dismissal on the Complainant

He confirmed that Ms A had left the business.

Mr D clarified that he had not given any weighting to the complainant’s continuance in the workforce in the aftermath the graffiti incident.

Evidence of Ms N Human Resource Officer

Ms N was involved in the Disciplinary procedure. she was satisfied that the Complainant had offered inconsistent statements in the course of the hearing. She confirmed that the Disciplinary process was thorough and logical, and the outcome of gross misconduct was not rushed.

During cross examination, Ms N clarified that her role involved a review of the Investigation Report and whether there was a case for application of the disciplinary procedure?

She clarified that the disciplinary team had not placed themselves in the shoes of the victim.

She affirmed that the sanction of dismissal was appropriate as the action of graffiti amounted to an expression of HATE and was intimidatory and was not what an employee on the factory floor should be exposed to.

When tested on whether there was a general Plant awareness prior to interviews? Ms N replied that there was but refuted that panic ensued or that this caused the complainant to be afraid. Ms N said that the Complainant changed certain answers during the process.

Ms N denied that a parallel investigation was underway at the plant. She stated that Ms M was investigating something on the line but did not specify what.

Ms N clarified that the company was not loss making.

She had not given weighting to the Complainant’s stated depression

She submitted that the complainant’s sister had not reverted with information on graphology. Nothing extra had turned on the request for CC Tv footage.

She clarified that Ms M had worked at the Plant for 3 to 4 years.

In conclusion, the Respondent Representative re-affirmed that the Complainant had been in the right place at the right time as the introduction of the graffiti to the Plant. It was their case that she had not engaged properly, and the Respondent was faced by a variety of explanations.

The Respondent held a reasonable belief that the complainant had authored the graffiti, and this satisfied the required burden of proof in the case.

By then, trust was broken.

The Complainant was represented by her Solicitor at her appeal.

The dismissal was justified and fair on all counts.

Counsel for the Complainant outlined that the Complainant did not have case to answer on the graffiti. She was procedurally and substantively unfairly and summarily dismissed.

He argued that it was an overstatement to conclude that the Complainant was the author of the graffiti as the “moderate “or “strong “link referenced by the handwriting expert placed the evidence at the lowest level which was not in the conclusive domain.

He submitted that the Complainant had liked Ms M.

He submitted that the Respondent had acted against a lack of cogent evidence and could not rely on the finding of gross misconduct. He added that they had not considered an action short of dismissal and the impact of the dismissal had been harsh on the complainant who had also lost pension and health insurance. She had found new work, albeit at a lower rate and weekly hours.

He submitted that time had moved on from the completion of the complaint form and the remedy now sought by the complainant was compensation.

Evidence of the Complainant:

The Complainant told the hearing that she was acquainted with Ms M who was very nice to her. She had said hello to her at the start of the shift on the night of the incident. She did not work on her line.

She said she was aware that Ms A had had an argument with Ms M about cleaning product. To her knowledge, Ms M had told Ms A that she had used “the wrong stuff “and directed her to using “the right stuff “This occurred before the first break. this was second hand information, and she understood this exchange had occurred down near the bathroom.

The Complainant described herself as a quiet person who did not have issues with other employees, including Ms M. She said that she had not spoken with Ms M during the process of this case.

She described a bathroom area comprising 8 stalls, which is cleaned during the day, but not at night.

The Complainant addressed the hearing when she said that she felt very bad about the way the company had treated her, this caused her stress and she considered taking her life.

She observed that the security camera was remotely affixed next door to the Male bathroom.

The Complainant clarified that she had not witnesses the exchange between Ms M and Ms A.

She explained that she felt pressured to attend interviews of inquiry so soon after she had completed 4-night shifts. She could not recall her movements.

She stated that she believed that the process she engaged in had a pre-determined outcome when she stated “good people do bad things “in the context of the Respondent asking her to admit to the graffiti.

She submitted that she had made 5 job applications.

During cross examination.

The Complainant confirmed that she had been in receipt of the pandemic support payment.

The Complainant addressed the Respondent representative when she said “I didn’t do it “in reference to the graffiti.

The Representative challenged the complainant as to why if she had the opportunity to remove herself from the central process of inquiry, she had not done that?

The Complainant response rested on the 12 hour shifts and little sleep.

The Complainant said that she was not certain of the argument between Ms M and Ms A. She added that if the Respondent had addressed Ms M on that night, it might have helped

The Complainant confirmed that she had been interviewed 7 times, but she found the questions complicated. she did say she did not understand. She said that she consistently denied writing the graffiti.

In redirect with her Counsel, the Complainant said she did not have the control; to remove herself. there were rumours and Chinese whispers immediately and she stayed away from the bathroom. she re-iterated that Ms M had never been approached for a “yes “or a “no “.

The Complainant confirmed that she had worked on nights and days without incident April to July 2020, she said she felt isolated. she re-iterated that she had not written the graffiti and was disappointed in how she had been treated as she understood that she had been an effective worker who was respectable and respected. she had secured 3.5/5 in her Performance appraisal that year she wanted to clear her name.

She stated that a certain named Male Manager, Mr E, not present at hearing, had not approached her. She felt aggrieved at losing health insurance, pension, and bonus.

In conclusion, Counsel for the Complainant contended that the process surrounding the Complainants dismissal was unfair.  He argued that the matter was not fully investigated, no attempt was made to explore reconciliation between Ms M and the complainant.

The Respondent relied on insufficient and circumstantial evidence as the graffiti could have been created at any time.

The Respondent had not engaged in proportionality assessment of the Complainants dismissal.

The Complainant had raised the topic of conflict, disclosed at her meetings with the Respondent, but not probed.

Counsel sought an award of compensation.

Counsel undertook to furnish details on mitigation of loss.

I have been requested to examine the facts of this case and decide whether he dismissal which occurred on July 29, 2020, is permitted by law in accordance with the exception of Section 6(4) (b) of the Unfair Dismissals Act 1977-2015.

As a first step, I wish to clarify my role in the case. The Complainant approached the hearing with the stated objective of “clearing her name “. In this, I understood that she expected that I would re-open the investigation which led to her dismissal.

On a point of clarification, I explained that my starting point was that I had accepted that the dismissal had occurred, and my delegated role was to address

1 Were their substantial grounds accompanying the decision to dismiss. section 6(1) of the Act ?

2 Can the Respondent rely on Section 6(4)(b) of the Act in defence of the claim?

3 Was the decision to dismiss reasonable in accordance with Section 6(7) of the Act.

Drawing from Chapter 16 of Redmond on Dismissal Law, Des Ryan BL referred to the Legal framework governing conduct-based dismissals in JVC Europe ltd v Panisi [2011] IEHC 279

The issue for the Tribunal deciding the matter will be whether the circumstances proven to find the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal

He goes on to describe commentary on how a finding of gross misconduct at WRC as the zenith of possible charges relating to a disciplinary procedure ADJ 3427. March 2017

He reflects the thinking of the EAT in Lennon and Bredin, M160/1978 in serious misconduct:

We have always held that this exemption applied only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer, we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category.

The Labour Court in Vitalie Vet v Kilsaran Concrete [2016] ELR 237, referred to summary dismissal as “the nuclear weapon of the employer’s arsenal of disciplinary sanctions.

The circumstances of this case arose during a night shift on 29 April 2020 and in the early trimester of Covid 19 at the Plant.

I fully accept Ms B evidence when she spoke about the importance of the workplace culture at the plant. I took from this the clear pride in the success of the business and the importance of the workforce to that success.

This mission statement is endorsed in principle in the seminal work of Amy C Edmundson in her insightful study of Fearless Organisation, Creating Psychological Safety in the Workplace for learning, Innovation and Growth, 2019 edition

The Respondent was very clear in the account of the discovery of graffiti as described on the morning of April 30. I would go as far as to say that the Respondent was visibly repulsed by this discovery. For them it was clearly an affront to the Company objectives, and they feared its influence amongst the staff. Ms N referred to the graffiti as HATE Speech. Ms B and Mr D saw it a breach of the Company Dignity at Work Policy.

The Complainant was also on the record as distancing herself from the graffiti, but for the purposes of this hearing, she repeated on many occasions that she had not written the graffiti and she had suffered by being accused of this act.

In my consideration of the evidence adduced, I was first drawn to the genesis of the complaint formulation. The incident was not committed to an Incident form. This surprised me in a Company such as described at hearing. The purpose of an Incident report is to capture in dispassionate terms who found it, who reported it, what intervention occurred, what measures were taken to capture the event for records for further scrutiny or evaluation, either by Investigators, Insurers or in this case a WRC hearing. I found the omission of compilation of an incident form to be glaring as there was some ambiguity on just how the graffiti was first found and first reported.

In other words, who was driving the management of the discovery of the graffiti? Having listened carefully at hearing, I can safely conclude that the Respondent took ownership of the discovery of the graffiti from early hours on April 30, when Ms A apparently reported the Incident to the Security Officer on duty.

I did not meet Ms A at hearing. I would have liked to meet her.

At no time did Ms M adopt the profile of Complainant in this process. Instead, I accept Ms B account when she clarified that Ms M sought to be kept appraised of progress in the matter. I took this to be a secondary role and not the primary role of complainant as described in the Company Dignity at Work Policy.

I find that the Respondent was  alarmed by the public statement of hate, and  took ownership of the incidence of graffiti on the bathroom door. when it initiated the primary telephone conversations with the shift staff in the immediate aftermath of the discovery.

 These telephone conversations were recorded in print and were not accompanied by a display of a photo of the graffiti. I found the format of the Inquiry  as opened by Ms B to be vague and not pointed. The statements which arose from that process were brief

I understand that this was a genuine effort at fact finding in the face of the C company’s genuine fear of toxic fall out amongst the staff which could negatively affect the positive culture at the business.

 However, it is with the next step that I have most difficulty, that of the Investigation. I found it surprisingly partisan as the complainant was the sole participant as confirmed by Mr H.

In Vita Cortex ltd v Dourellan UD 1031/1992, the EAT set down:

A reasonable investigation requires more than merely seeking to confirm suspicions, it must include an inquiry into all surrounding circumstances and interviewing all relevant employees on these matters

In the instant case, the Investigation process commenced on June 11 – 3 July and culminated in a report shared with the complainant prior to the assessment of whether Disciplinary Procedure was warranted or not. The Complainant was accompanied by her team leader who served as her advocate. During this process, the Complainant asked the Company to reach out to Ms M on her behalf to validate whether there was “animus “between them. She added that they could broaden the exploration to” anybody “

It goes to the root of this case that this request was not acted on by the company, particularly when the Complainants representative asked if the Investigators “did you speak to Ms M “?  

I was also disappointed to see that the Respondent relied on information imparted by the complainant to one member of the investigation team on June 12, outside of the main frame of the investigation.

By then the Company had gone down the road of graphology to prove the author of the graffiti. I appreciate that this was done in good faith and carried a high financial outlay.

I did not meet the graphologist and did not have the benefit of her evidence. I accept that I serve as a gatekeeper in terms of admissibility of evidence at a hearing. I accept that “peculiar knowledge” accompanies expert evidence, but this evidence could not be tested through cross examination, and it therefore lacks probative value. I take the Complainants point that the finding of strong evidence of authorship of the gravity is not at one of conclusive evidence of authorship. I have adopted a guarded approach to this evidence

The Respondent expressed a genuine concern that the complainant presented “muddled statements “and sought to change the chronology of her interaction with a number of staff who had proximity to the female bathroom on April 30, 2020. This arose a suspicion in the respondent of misleading accounts by the Complainant and was added to the elevating evidence which they viewed as emerging from both graphology reports.

The Complainant sought to place the context and background for this zig zag approach to the effects of night duty and the fear of becoming involved in the process.

For my part, I find that it goes to the basics of fairness that an accused employee and by then, I can safely conclude that as a sole participant in the investigation, the complainant was an accused employee, should have been provided with an opportunity to examine all relevant witnesses. In this case there were many witnesses to the discovery of and recording of the graffiti and in particular, the Respondent was managing a concrete denial, from the Complainant. This ought to have prompted a more in-depth and more inclusive inquiry.

I find that the Respondent ought to have broadened the investigation to interview the witnesses advanced by the Complainant, in particular Ms M. When I probed this, I found that the Company took their duty of care very seriously to Ms M, but this was not, in my opinion balanced equally with the Complainant. The Complainants inconsistent statement prompted their impatience and disbelief as they were overtaken and swayed by the scientific findings of the graphologist.

For my part, I find that there ought to have been adequate scope for the Investigators to follow the science and follow the human relationship domain in the course of their investigation. It may have yielded a more comprehensive  and effective outcome.

I have considered the Disciplinary Hearing and am troubled that the Respondent disregarded the complainant’s disclosure of an apparent conflict between Ms M and Ms A earlier in the night of April 29. some of this was reflected in Ms Ns statements at hearing. I formed the distinct impression that she was aware that something had happened on the line between Ms A and Ms M, but Ms N did not respond to my questioning in that regard. I could not put the matter any further outside of learning that the company had not investigated this.

The Respondent did not take account of the Complainants individual statement of her depression at disciplinary hearing. I found this unreasonable.

In this, I am mindful of Mc Evoy v Avery Dennison ltd [1992] ELR 172 on an employee recent clinical depression. Neither party produced medical evidence in the case.

I can understand that the Respondent was seeking to act in the best interest of the Company in the course of this case. However, I was troubled when I inquired from Ms B on the policy breaches attributed to the Complainant. I found a lack of precision in her response and found that her reference to policy breaches was more reflected in a blanket breach rather than in specific contraventions.

I also reflected on Mr Ds evidence that there was no further occurrence of graffiti after the Complainant had left employment.

I realise that the burden of proof attributed to the findings of the Investigation and Disciplinary hearing was that of the balance of possibilities rather than the criminal standard of proof, beyond reasonable doubt. However, I found that insufficient weighting was applied to the complainant’s persistent denial of authorship of the graffiti. the Respondent did not act on the cues offered by the complainant in her own case. There was simply “no deep dive “outside of graphology and I have already stated my reservations on this evidence, particularly in the absence of the author and in particular when it stopped two steps short of definite conclusiveness.

The reported altercation between Ms A and Ms M was not probed, it should have been probed at Disciplinary stage, even if it ended up as discounted.

I was alarmed on my review of the disciplinary hearing documents to learn that Ms N had permitted an extension of time to June 29 for the complainant’s sister, her moral support at hearing to furnish secondary graphology reports and a further review of CC TV around the reported early morning link up with Ms A.

This was overtaken by an invitation to attend a disciplinary outcome meeting on July 27, thus closing the door on additional evidence. within the window of time granted.

I have also found that the Complainant had worked continuously from May to her day of dismissal, nobody considered this in considering a sanction in the case, yet no issues were raised in her performance during that time.

In all of the circumstances, I have found that while the Respondent was repulsed at Plant level that a blatant expression of hatred was displayed on the female bathroom door during a night shift, I found that in seeking to halt that writing hand from further toxicity, they rushed to justice. I can understand the confidence placed in the second graphology report placed wind in the sails of that pursuance of justice.

However, I found an insufficient weighting placed on the persistent denial of the complainant and her wish to open the Inquiry to further participants. I appreciate that this is a rear window review, and that the Respondent was faced with a nervous and inconsistent storyteller in the complainant during the process and the jig saw presented by her did not correlate with that of the Respondent version.

I was not impressed by the Appeal in this case as it did not attach reasons for the outcome of upholding the dismissal.

In a 2014 case from EAT Jonathan Hanlon and Smurfit Kappa Ireland UD 1378 /2014, Complainant was employed as a general operative for 7 years. His allocation for Jury Duty placed him in an unauthorised attendance conflict in his works time management recording system. The Complainant addressed these in a “clumsy and inaccurate explanation “His was a muddled manner 

The EAT held that the Respondent had chosen its most severe sanction and remarked

It was not necessarily reasonable for the respondent to accept the version promoted by some of its supervisors over that of the muddled version of the claimant. It follows therefore that its decision to dismiss was unreasonable.

….

The respondent was as consistent in its belief that the claimant was untruthful in hi account as much as the claimant was consistent in his contention that he did not knowingly and deliberately mislead the company in gaining from his unexplained absences. The claimant’s behaviour in effectively absenting himself without permissions contributed to the respondent belief he acted contrary to agreed procedures. that belief was reinforced due to his attempts at explaining those absences. Had the claimant been clearer in his explanations and the respondent less certain of its position then a more amicable conclusion might have been reached.

In the instant case, I find that the Respondent did not complete a comprehensive investigation in this case. The Complainant was not heard when she sought to broaden the investigation. This frailty continued into the Disciplinary hearing where a finding of gross misconduct was completely disproportionate on foot of the incomplete investigation and over reliance on the technology of science to the detriment of a parallel careful review of human staff  relations.

I accept that the Complainant presented as muddled for most of the process and this unnerved the Investigators and the Disciplinarians. She also presented as vague at hearing and at times drifted from the process. I can empathise somewhat with that experienced by the respondent.

However, I found that her unblemished record was not considered in any remedial action, nor her continuum of service through a very trying time.

I have reflected on the Complainant’s evidence that she considered taking her own life during this time. In her evidence , she  reflected her anguish at being accused for something she still believes that she did not do. It is not my role to determine just who placed that expression of hate and humiliation on a bathroom door. I have however observed the complainants anguish as well as the company abhorrence for the practice .

I have found that the Respondent cannot rely on the defence contained in section 6(4)(b) the evidence relied on to dismiss  was not robust to be elevated to gross misconduct without further investigation The Complainant was denied due process .

I found that that the company did not probe information given to them on a potential animus amongst a named member of staff and Ms M, even if resulted in this information being discounted at the end of the day.

Finally, I am satisfied that the Respondent acted to curtail the author of the graffiti to honestly preserve a healthy and safe work culture but in so doing they have lost Ms M and the Complainant. from their employment.

I have found there  were some genuine concerns around the complainant’s proximity to the writing both in time and place , but I cannot accept that the Respondent had substantial grounds to terminate her employment.

I find that the Respondent genuinely believed that the complainant had written the graffiti, but this was not a reasonable assumption given the investigative work left undone. I have found that the Respondent acted unreasonably in dismissing the complainant.

The Complainant was unfairly dismissed.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant was unfairly dismissed.

I cannot recommend that the complainant returns to this employment. The only practical option open to the complainant is compensation. I did not receive expansive detail on mitigation from the complainant.

I order the Respondent to pay compensation in respect of the unfair dismissal .

€15,152 gross in respect of the financial loss  and loss of pension rights ,August 2020 to February 2021. This is based on a gross salary of €1,262-69 per fortnight, reference pay slip 6 August 2020. (ex-BIK )

I also award € 7,950 as 20 weeks prospective loss at €397.54 gross differential per week from February 2021.

This totals an order of compensation of €23, 102.

Unfair Dismissal