FULL RECOMMENDATION
PARTIES : CLANCOURT MANAGEMENT LIMITED T/A CLANCOURT MANAGEMENT DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00027141, CA-00040869-001. This is an appeal under the Unfair Dismissals Act 1977, ‘the Act’. Mr. Cahill, ‘the Complainant’, worked as a Security Operative for Clancourt Management, ‘the Respondent’, from 2013 to 2020. Following a number of investigations and disciplinary processes, the Complainant was dismissed on 3 September 2020. The Complainant lodged a complaint under the Act with the Workplace Relations Commission, ‘WRC’. An Adjudication Officer, ‘AO’, decided that the complaint was not well founded. The Complainant appealed to this Court. Summary of Respondent arguments. The Complainant was dismissed on 3 September 2020 as a result of what was considered to be gross misconduct, including a breach of direct instructions regarding communication with a witness to an investigation into the Complainant’s conduct plus the fabrication of complaints against colleagues. At all times, there was rigorous application of company procedures and natural justice. The Complainant was represented throughout. Leading up to December 2018, a number of allegations were made regarding the Complainant’s conduct. In September 2019 an investigation upheld complaints that the Complainant had made unfounded and derogatory comments about the private and family lives of colleagues and false allegations of misbehaviour by colleagues, that he had been aggressive to a supervisor, had failed to wear the correct safety gear and had failed to carry out an instruction to do so. In the meantime, in July 2019 the Complainant was notified of two further allegations against him. These concerned interactions with a colleague, Mr. W. Both men made complaints against the other. The investigation involved interviews with both men and with a witness, Mr. O’ C. The Complainant was provided with notes of the meetings and declined an opportunity to make comments or further submissions. A copy of preliminary findings was given to both parties and they were afforded the opportunity to comment. The Complainant provided a written statement, which was taken into account and both parties were given the final findings. The Complainant was afforded the opportunity to view relevant CCTV. The finding was that the Complainant had approached Mr. W and had accused him of lying in a statement given and that, on the same day, he had engaged in an inter-action with Mr. W in the course of which he had pointed his finger. Following these two investigations, a disciplinary process took place. The Complainant was afforded the right of representation. The outcome was that the Complainant was issued with a final written warning and was told that any further findings of inappropriate conduct could result in dismissal. The Complainant appealed. The sanction was upheld. In December 2019, a further investigation was initiated into an approach by the Complainant to a witness in the first investigation, Mr. H, when he had been told expressly not to do so, and an email to the HR Manager in which he stated falsely that Mr. H had fabricated his evidence and, further, that he had done so under pressure from the Centre Manager. An investigation took place. The two witnesses were interviewed and the Complainant received notes of these meetings. The Complainant attended a meeting on 3 February 2020. The investigator gave the Complainant a copy of preliminary conclusions and invited comments. The Complainant was invited to submit new evidence or to attend a hearing. The allegations against the Complainant were upheld. On foot of this a disciplinary process was initiated. It had to be paused due to Covid but a hearing took place in July 2020. The Complainant was represented and he made a number of submissions. A decision to dismiss him was sent to the Complainant. Although his actions were deemed to be ‘gross misconduct’ it was decided to give the Complainant four weeks’ pay in lieu of notice. The Complainant appealed the decision. An appeal hearing took place. The sanction was upheld. The dismissal was in accordance with s.6 (4)(b) of the Act. The Respondent complied with all obligations under the Act. Fair and transparent procedures were followed. The sanction was appropriate. Without prejudice to this, the list of workplaces to which the Complainant claims to have given his CV since his dismissal is not sufficient evidence of attempts to mitigate his loss. Summary of Complainant arguments. The Complainant believes that he was targeted constantly for disciplinary matters and ultimately for dismissal. He was involved in three investigations, in which the Respondent hired two different Barristers. He tried to raise matters with the employer to have this behaviour stopped Throughout the investigation processes, the employer refused to follow fair investigation procedures. A detailed list of points regarding details of these processes, with which the Complainant takes issue, is provided to the Court. In frustration at the fact that his responses and evidence were not taken into account, the Complainant spoke with a colleague who had signed a statement against him in the first investigation. The Complainant declares that the colleague told him that he was pressured into signing the statement. He brought this to the attention of HR. The Respondent set about a third investigation, which upheld the complaint against the Complainant. The Court’s attention is drawn toFrizelle v New Ross Credit Union (1997) IEHC 137,which determined that if a procedure is tainted by irregularity or impropriety then the dismissal must be unfair. Also, when a complainant has an unblemished record of 8 years’ service, similar to this case, the EAT concluded inTesco Ireland v. Laura Gannon UD2114/2010that dismissal was disproportionate and, therefore, unfair. In this case, the Respondent had alternative options, taking account of the Complainant’s clean record. There were no proper or fair procedures, the Complainant was denied natural justice, the dismissal is disproportionate, unwarranted and unreasonable. The Respondent breached their own procedures. The Complainant was targeted for disciplinary sanctions. Documents submitted to the Court substantiate these points. Summary of witness evidence Mr. Jason Cahill Mr. Cahill is the Complainant. The witness said that he had been treated unfairly. He gave the example of how evidence from a colleague was taken into account in respect of the investigation of the incident between Mr. W and himself, even though the witness was too far away to have heard what was said. He noted that he was not allowed to appeal the outcome of that investigation. The witness said that he believed he had been targeted. He said that he had a dispute with the Respondent regarding his 2014 leave and he had also sought the installation of a panic button. After this, he had been taken off security duties and put on maintenance. He believed that this was an attempt to ‘wear him down’. He had refused to sign a revised contract. He had been targeted because they could not break him. The witness said that he had reported an internal whatsapp group because of its racist content. He had been told that the matter was investigated but found to have no substance. He believed that his colleagues on that forum set out to ‘get him’. There had been damage to his locker and stolen property had been put in his bag. The witness said that the initial investigation had only upheld two complaints against him. The witness provided a list of employments, to which he had given his CV since his dismissal. He stated that, for health reasons, he was seeking a change in his type of employment and that he was being assisted by Turas Nua with this. He had been on Jobseeker's Benefit since his dismissal. Under cross examination, the witness disputed that he had been given an opportunity to see and consider all evidence in the second investigation, noting that his representative had to request to see the CCTV footage and that he had then been given very little time before the report issued. He accepted that the footage had been provided and that the report had noted this. In response to questions from the Court, the witness accepted that he had only submitted 14 applications for jobs since his dismissal and that the last application was in May 2021. He reiterated his points about liaising with Turas Nua. In relation to his claim of unfair procedures, the witness referred to the fact that he had conveyed what his colleague Mr. H had said to him about Mr. H’s statement in the first investigation and that he had been investigated for doing so but no investigation had taken place into the interactions between Mr. H and the Centre Manager subsequent to the Complainant raising this matter, which indicated to him that he was being singled out for unfair treatment. The applicable law. Unfair Dismissals Act 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. (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: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, 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, to determine if the dismissal falls into a ‘band of reasonableness’, 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 into this band of reasonableness? The Complainant’s representative, quite correctly, draws the Court’s attention to the requirements set out inFrizelle v New Ross Credit Union (1997) IEHC137for an employer to adhere to fair procedures prior to a decision to dismiss as, obviously, a failure to adhere to proper procedures renders a dismissal outside a band of reasonableness. In this case, the Complainant has provided an extensive list of incidences where he disagrees with processes and/or conclusions as part of his argument that he was singled out for unfair treatment. What is not disputed is that colleagues of the Complainant offered statements in the various investigations to support the findings. Nor is it disputed that the Complainant was advised of the complaints and given an opportunity to respond; that he was afforded, and availed of, the opportunity to be represented; that all necessary evidence was provided to him and that he was given an opportunity to comment. A suggestion that the investigations were conducted by people who were in business partnership with the HR advisor of the Respondent was not supported by any evidence, flatly denied by the Respondent’s representative and, in effect, conceded with commendable grace by the Complainant’s representative. The evidence suggests that full and reasonable consideration was given in all of the processes to the position advocated by the Complainant. The Complainant’s assertion that only two complaints were upheld in the first investigation is, as a matter of fact, incorrect. Suffice to say, without itemising every single complaint, the investigation upheld a substantial number of complaints. It is not the function of the Court to re-investigate disciplinary complaints. In looking at the outcomes of the investigations, the Court needs to consider if the decisions arrived at are rational, based on the information available to the investigators. All of the observations by the Complainant, when taken together, do not come anywhere near supporting an argument that the outcomes were so irrational as to render them unfair. The ’Tesco’ case, to which the Complainant’s representative referred , in the view of the Court has to be evaluated on its own merits. There is no doubt that a record of good service to an employer might be a significant factor for consideration in a possible dismissal. Equally, however, it may be of little help in evaluating possible action. It depends on the particular circumstances of the case. In the instant case, the Complainant was on a final written warning and on notice that further disciplinary problems could lead to dismissal when the Respondent came to consider an appropriate penalty because he had discussed the first investigation with a witness, despite being told expressly not to do so, and, as a consequence, he had made serious allegations to the effect that the witness had given false evidence under pressure from a manager. It is not the Court’s role to substitute its view for that of the Respondent and to determine if the Court would have dismissed the Complainant if it found itself in the role of the Respondent. The Complainant made a serious allegation which, if upheld, would have had repercussions for the two people involved. From the point of view of the Court, given that seriousness, the question is whether dismissing the Complainant, (who was on a final written warning at the time of the decision to dismiss), because he made a serious allegation that was determined to be false, fell into a band of reasonableness? It is difficult to see how the decision of the Respondent could be seen as so unreasonable that no reasonable employer would have arrived at that decision, as per the test set in ‘British Leyland’. Accordingly, for the Court to determine the dismissal as unfair would require the Court to disapply that test. There is no obvious reason why it should do so. Therefore, the Court cannot find that the dismissal was unfair and the appeal must fail. Determination The Decision of the Adjudication Officer is upheld.
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