Complainant

Respondent

Anonymised Parties

Store Worker

Retail Store

Representatives

 Mandate Trade Union

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045638-001

11/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00045638-002

11/08/2021

This complaint of unfair dismissal and a related claim for pay in lieu of notice relate to an allegation of harassment of a female employee, and the conduct by the employer of the various stages of the procedure.

The employee concerned in this case was in the employment from 6 December 2011 to the date of his dismissal on 6 May 2021. His rate of pay at the time of dismissal was €379.50.

A written complaint containing references to more than one incident was made against him on xx. There followed an internal investigation which upheld one of the complaints, that of physically striking the female employee on what I have termed her buttocks on 13 December 2020. There followed a disciplinary procedure with an appeal stage which resulted in the dismissal of the Complainant without payment of notice pay, on grounds of gross misconduct.

Respondent Witness Evidence

Witness A

Witness A explained that his role in the company was to investigate serious employment problems in the company and he investigated the complaints made by employee X in December 2020. He has responsibility for ensuring that staff policies are adhered to. Asked what he was told when he was appointed to investigate the complaint, he said that he was led to believe that the Complainant had slapped another employee on the buttocks, that she had made a report to a manager on the day, that she was very emotional and the manager advised her to go home. She said that she had been subjected to abuse by the Complainant in the past. This was a complaint addressed under the grievance procedure. The complaints about other behaviour were investigated but not upheld. The witness referred to the documents describing the conduct of the investigation and meetings held. Referring to witness K who had given two different statements of the events on December 13th, 2020, he emphasised that when he interviewed her, she said that she believed that something had happened, she could not recall saying you can’t do that. However, she did raise her hand pointing at the Complainant and while she could not recall why she had raised her hand and pointed on the day, he found her raising her hand and pointing significant. She could give no reason as to why she did that at that time. He confirmed that the Complainant had access to the CCTV footage during the investigation stage. When explaining the factors that he took into account, he included the consistency of the testimony of X from the time she first reported an issue to the manager in the store.

The Respondent then displayed the CCTV and the witness took the hearing through the images which showed three angles on the same event. The pathway of the Complainant was shown and then the witness pointed to a hand reaching out and striking staff member X and the other staff member K immediately putting her hand up and X moving to put a trolley between her and the Complainant. It showed K pointing at the Complainant. In response to questioning the witness stated that a copy of the CCTV was provided to the Complainant in advance of his interviews and he was also provided with the interview notes from other interviews. Asked had the Complainant or his representative objected to his meetings taking place remotely, he stated no. The Complainant’s response was that he denied the allegation and said that others may have seen the incident which led to additional interviews with those employees. The Complainant’s explanation was that X was in his way when he was pushing a trolley and he had to stop to move the trolley back and was reaching down to put his hand out to hold the well-stocked trolley. The witness said that there was nothing to indicate sticking wheels or trays and again, using the CCTV, pointed to X moving away from the Complainant and putting the trolley between herself and him after the incident. On the matter of the Complainant’s training, the witness said that he had signed off on attending the training some years previously and stated no issue was made to him of the passage of time since that training.

In response to questions from the trade union the witness agreed that no statement was made by X until the 20th of December, a week after the incident and the statement was made on the companys notepaper. Asked did he agree that the CCTV was not very clear, the witness again offered to point out what happened referring to the trolley and that you could clearly see a hand coming out towards X.

As the witness was responsible for the employer policies in relation to employees, in relation to the suspension of the Complainant, the Chair asked about the policy of the employer regarding a suspension did he agree that the Complainant was not informed of the nature of the allegation at the time of his suspension and was given no opportunity to respond according to the note of that meeting. The witness stated that it would be normal to put the charge to the person. The note indicates that the Complainant was informed that it was a serious allegation accepting that it would appear from the note that he was not offered an opportunity to reply before he was suspended. The nature of the allegation was however clearly set out in the invite letter to the investigation process.

Witness B

The witness explained that his role was a store manager in another location and confirmed that he had no previous working relationship with those directly involved. He conducted the disciplinary hearing meeting. This involved interviewing the Complainant and his representative and also interviewing an additional witness, L, because she could be seen in the CCTV footage. At the first disciplinary meeting, the Complainant suggested she might be able to shed light on what happened. He therefore adjourned the disciplinary procedure, contacted Ms L, met with her, took a meeting note and provided it to the Complainant and then held a second disciplinary meeting. At the disciplinary hearing the Complainant said that he was standing by what he said previously that he didn’t touch X, that his trolley was unstable and the crates were unsteady, that he had to stop the trolley, reverse, that he put his arm down, he could see the trolley was unsteady. Asked what he took into account in arriving at his decision that the Complainant should be dismissed, the witness referred to that he took account of the seriousness of the incident, the service of the Complainant, which was very good, the CCTV footage, the statement of X, and the state of mind of X on the day when she went to the manager very upset. The witness said it was very clear to him what had happened. What the Complainant said had happened, he just could not see it. No mitigating circumstances were presented to him. There was no objection to the remote investigation meetings made to him. Asked if he considered other forms of disciplinary action the witness said that he did, but as this was serious misconduct and sexual harassment, he felt that dismissal was the appropriate option.

Witness C

The witness explained that he was a manager in another store and he was the appeals officer and confirmed that did not know any of those involved personally. In the course of the appeal the issue of cross-examination was raised and he considered that point and decided that the Complainant had access to all the documentation and the evidence at all stages. The witness said that he considered all the evidence and the CCTV, that another issue was raised regarding a data access request and then clarification for the grounds on which the decision maker based his decision to dismiss which meant further inquiries and some delay.  Asked why he felt that dismissal was appropriate he said that it was due to the seriousness of the allegation, i.e., one of sexual harassment.

In response to the trade union representative, he confirmed that on the opportunity to cross-examine the person making the complaint the witness confirmed that the person had left the business at that stage in April 2021.

 Key points of the submission on behalf of the Respondent

The Respondent submission can be easily summarised as a defence that once there was a finding that the Complainant had indeed struck the female employee X which amounted to sexual harassment, the decision to dismiss was justified on grounds of being an act of serious misconduct. In terms of the claims of unfair or flawed process, all stages of the procedure, from the investigation through to the appeal hearing were conducted in accordance with fair procedures. The Complainant had representation, all notes of interviews with other employee were provided to the Complainant before his own interviews, the CCTV footage was made available to him and any witnesses he suggested should be interviewed were interviewed.

In response to the Union position, the Respondents position is that there was no request for in person meetings during the processes, accepting that witness K was interviewed on her own before the complaint was made in writing, this was done in order to establish if she had seen anything occur on the day in question and she was interviewed again as part of the investigation, the discussion with employee X prior to her making a written complaint about her options was intended to make sure she understood her options and not to pressurise her into making a complaint, cross examination was not mandatory under S.I.146, is not supported in McKelvey.

Complainant Witness – The Dismissed Employee

The witness explained that he had been a GHS operator for 9.5 years with the Respondent and had no disciplinary record of any kind. The witness was advised by the Chair that he could use the CCTV footage to support his evidence.

The witness described what occurred on the day saying that he was bringing the “dolly” from the chill department. He said that he was pulling the dollies, that the wheels do get stuck and to make sure that nothing falls off he had his hand on the top and around the side. This is exactly what happened. He spoke to the witness K that day and she pointed her finger at him. This followed some chat – it was Christmas time and the pickers were not too busy – he remarked that the girls he would be finishing early this morning and he was going to tell the boss. K said you can’t be doing that pointing her finger at him. On 20 December he was called to a meeting by the manager, he did not know what it was about and he was not advised to bring a representative. It was he who asked to be able to have one present. When they returned to the meeting, he was told there was an allegation against him from the previous week. His position was consistent from the very beginning and had not changed in any way (a reference to the consistency mentioned by a Respondent witness). He denied the complaint made against him of striking the employee X. In relation to K pointing at him that day, there was banter on the day with K. In response to his representative, he stated that he had never had any difficulty of this kind in all of his years, he had himself managed people, he described his qualifications, that he had acted as a manager of people, that he was dealing with people in all his working life and he had never experienced anything like this and was never accused of anything like this. This was a nightmare for him. The witness became very upset at the hearing saying that he hardly knew the other person, that pickers come and go all the time. The other person was allowed face-to-face meetings on how she felt but he was not offered those meetings. The evidence on the CCTV was very poor, adding that he was 64 years of age, and this was very difficult for him and made it very difficult for him to obtain other work.

On the mitigation of losses, the witness stated that he was involved in various clubs and social activities, a lot of organisations and when this happened in a small area others got to know about it. There were references to the care of his son and his wife returning to full time work. He explained that he became eligible for his pension at one stage in the time since he was dismissed. He spoke to a few people about work and then when they knew about the situation or that something had occurred, they told him to come back to them when it was sorted.  Asked what he was looking for from his hearing he said he wanted the Respondent to recognise that that they made a mistake, that his name should be restored and added that no other people on the floor saw anything that day. This hearing (WRC) was the first opportunity for him to be heard in person, whereas the other person was heard in person by the employer. The witness questioned the confidentiality of the situation when between the 13th and the 20th of December 2021 six people were involved in this situation how it could be kept confidential (a reference to the confidentiality aspect of investigations as per the Respondent’s policies). He confirmed to the Chair that he made no formal applications for other positions following his dismissal. 

Key Points of the submissions on behalf of the Complainant

Following the submissions by the Union on the first day of hearing, following some discussion around the individual points and consultation with the Complainant, it was agreed that the essential points being made on his behalf were as follows:

a.      A statement was taken from the witness K (prior to the investigation) without her having a support person or there being a notetaker present-a breach of company procedures.

b.      CCTV was central to the decision making-disputed as to what it indicated and not proof of what was alleged.

c.       All interviews with the Complainant were conducted by conference call and not in person-on clarification the Union confirmed that in person meetings were not requested.

d.      There was no opportunity to question the accuser-in breach of S.I.146/90

e.      With the number of people spoken to before the complainant was suspended between 13 and 20 December-there was a breach of confidentiality and therefore the company procedures.

f.        The Complainant had not received training on the DAW work policy since 2013-training was in adequate.

g.       The employee-X – was encouraged to make a formal complaint (by local management)

It may be said that in all cases of dismissal there are two distinct areas to be considered in arriving at a decision-substance and procedures. As this case was presented and argued those two distinct areas were contested by the parties with no give on either side. I have considered all of the oral evidence, the very detailed oral and written submissions as well as the documents provided in support of the evidence and procedural aspects and now set out my conclusions in respect of both aspects starting with the substance of the case against the complainant and then the procedures used by the Respondent including the earlier stages prior to the suspension through to the dismissal.

In respect of the substance of the case, the finding by the Respondent that the complaint of sexual harassment through striking a female employee on her buttocks, this was a very serious charge, one which could neither be dismissed or upheld lightly by any responsible employer. In his evidence, the Complainant himself acknowledged the seriousness of such an action and that he did not need training, or further training, to understand this. The Complainant does not present as a good witness in his own case. Anxious and defensive and generally blurting out his replies. Not someone giving a lot of thought to the questions or the answers. Surprisingly, he did not take the option of speaking to or presenting the CCTV evidence to the hearing from his perspective, to support his own case in spite of being reminded he could do so by the Chair. And indeed, his then union official had indicated on the first hearing day that he would be doing so. One point which I had clarified in writing following the hearing, were the dates of employment of employee X. Her start date was given as 17th August 2018 terminating by resignation on 11 April 2021.  The evidence of the Complainant therefore that he hardly knew her on the basis that pickers come and go, does not stand up to scrutiny and I found this a significant contradiction between the picture the Complainant sought to portray and the facts particularly where the employee X did complain about the Complainants behaviour in relation to more than one incident. Even if not upheld, the duration of their time working in the same area and the existence of more than one complaint over a period of time, suggest far more than a passing acquaintance between these employees.

The Respondent on the other hand, in the person of the investigating manager, witness A gave compelling, credible evidence as to why to him, the CCTV clearly indicated a hand striking out at employee X and why, in spite of her changing her account between her informal meeting with a manager and investigation meeting, he gave so much weight to the actions of employee K as demonstrated on the CCTV. His position was supported by the CCTV to some extent, but more critically that, while the Complainant gave an explanation as to why K was pointing based on banter between them, K could give no reason at all why she would have reacted in the way that she did, making that pointing gesture at a critical time in the sequence. I am satisfied therefore, to prefer the evidence of the Respondent witness A as to what he and therefore the hearing was observing on the CCTV footage. His finding of upholding the complaint of employee X regarding that incident on 13 December 2020 was wholly justified.  Following on from this conclusion, I find that any reasonable person would agree that the finding of striking a colleague in the inappropriate manner found in this case represented harassment of a female by a male employee and was therefore constitutes serious misconduct. That having arrived at such a finding, dismissal was an appropriate sanction has to be accepted as a course of action which the employer can justify given in particular that they are, under statute, vicariously liable for the conduct of their employees in such matters. On the substance of the case which formed the basis of the disciplinary action against leading to dismissal, I find with the employer.

Moving on the procedural issues raised on behalf of the Complainant, having met him, I could not see the Complainant giving a good account of himself over a phone on such a serious matter. And the exclusion of him from the workplace while the Complainant remained at work at least for a period and was met in person during the investigation probably worked more to her favour than the Complainants. There was a degree of unfairness in this aspect, Covid restrictions or not, but the Union, although they made it an issue on his behalf at the WRC, did agree that this was not an issue during the proceedings. Not having done so it is a bit rich to be doing so as a major fault on the part of the Respondent at this stage of the proceedings.

There are legitimate concerns raised by the Union about the manner in which the employee may have felt under pressure to make a complaint rather than pursue mediation. At least I am satisfied this is one possible reading of a situation where she is told of her options by a manager ‘1-we deal with this incident in store where we make [him] aware of the incident and make sure this behaviour doesn’t happen again. But it means the two of you will have together so if you go with this the best is to bring the two of you together and have a mediation session. We will try to clear the air so the two of you can work together.

2-we go down the more formal route, we take witness statements of people present and follow the outcome of meetings. [Name] would be suspended and its gross misconduct which could end up to include dismissal for him. This is your decision to make as you have control.

Such unenviable choices and employee X being pressurised into taking full responsibility for the Complainants future employment. This from an employer who possessed and came to rely on the CCTV coverage so crucial to their decision making. Ultimately it was employee X who could say she had most to complain about in this approach by the local management rather than the Complainant. The manner in which this aspect was handled does not form a basis for finding that the dismissal was unfair.

The interview with K when she was unaccompanied was not a safe way of interviewing a key witness and should not be regarded as a justifiable precedent by the Respondent. One wonders what would have happened in relation to the complaint of employee X if K had given her second account when interviewed outside of any process.  It is notable that when accompanied by a union representative that she did alter her previous statement to a version less favourable to X. So as a matter of fairness, she did have the opportunity to make a second statement during the investigation. Even though she withdrew a key part of her first statement in a manner which benefited the Complainant, she still could not and did not provide an explanation which accorded with the Complainants evidence to the investigation or this hearing at the WRC-in relation to her pointing at the Complainant immediately after the incident with employee X. On balance, concerns about this aspect of the case made on behalf of the Complainant on procedural grounds are insufficient to render the dismissal unfair.

The suspension process followed in this case is not an issue raised by the Union on the first day of hearing but is one which is of concern in examining the influence of that suspension of the rights of the Complainant.  The employer should review what occurred in this instance. Quite simply, any person being suspended is entitled to know the nature of the complaint against him and to make a response. A potential criminal has the right to remain silent, but this employee had no rights at all at the suspension stage. And the haste to suspend him on the date when employee X made a written statement seems more driven by getting the Complainant off the premises than any concerns about his rights. However, given all the opportunities given to the Complainant to make his case in what were, overall, taking into account the accumulation of correctly conducted procedures following that date, I find that the manner in which he was treated or mistreated in relation to the suspension insufficient did not render the dismissal unfair.

On the issue of cross examination and the alleged failure of the Respondent to afford that opportunity to the Complainant, I do not find that any of the case law cited by the parties fully coincides with the facts in this case. Lyons has been super ceded by Mc Kelvey and both were primarily concerned with the right or necessity to have legal representation in employee / employer disciplinary processes. Firstly, it must be noted that the ability to cross examine a person or the right to confront an accuser as it is more commonly known, may well hinge not just on the procedures but the seriousness of the issue under consideration particularly in terms of the employee/s reputations and the context in which allegations are made also be a consideration. Legal representation is not required to conduct such a procedure-it is one of asking questions. It is established through the precedents cited by the Respondent that this is not a right as a matter of course but nor can it be said that this can never be made available to an accused employee in every single circumstance in any workplace investigation.  Leaving aside any legal arguments based on precedents, I find that the defining issue for my consideration in this case is whether that option was sought by or on behalf of the Complainant.

Based on the letter of appeal on May 11th, 2021, I concur with the position of the Respondent representative that this issue was not raised at any stage in the proceedings prior to that date and while employee X was in the employment. On further reading of that intervention by the Union was not so much to seek to cross examine employee X but to point out that there was no opportunity to cross examine her and by then she had left the employment. There is a whiff of convenience around the timing of this intervention rather than actively seeking at that point or at any earlier point to exercise such a right if that is what was being claimed. In addition to declining to accept position put forward on behalf of the Complainant on the issue of cross examination, I must note that throughout the processes, the Complainant did have access to all notes of interviews and did have the opportunity to comment on them thus providing him, albeit indirectly, with the right to challenge that oral testimony as recorded in the meeting notes.

On the remaining points made by the Union-confidentiality while there may well have been too many people aware of the complaint of employee X before the Complainant was told formally, there is nothing which suggests that his right to fair procedures were compromised by that knowledge. Very little time elapsed between the time the complaint was formalised in writing and the suspension on the same morning.

Format of the various meeting involving the Complainant. It is agreed that such a serious investigation and the subsequent disciplinary process should have been conducted in person, for the Complainant and all others. The fact remains that neither the Complainant or his representative sought to change the format or the venue.

In summary there are areas to be concerned about regarding the practices and procedures followed by the Respondent most particularly around the informal interview with K, the manner of the suspension and the pressure placed on employee X. However, I do not find the procedural deficiencies sufficiently serious as to provide a basis for finding that the dismissal of the Complainant was unfair when set against the totality of the procedures followed by the Respondent and the substance of the issue which formed the basis of the decision to dismiss.

Given the findings in relation to the substance of the issue which formed the basis of the dismissal and the procedures followed in this case, the overall finding is that the Complainant was not unfairly dismissed. On the basis of this finding, the claim for payment of minimum notice is not well founded.

CA-00045638-001 Unfair Dismissal Act 1977. The complaint of unfair dismissal is not well founded and is therefore dismissed.

CA-Minimum Notice Act 1973. As the complainant was dismissed on ground of gross misconduct, the complaint seeking payment in lieu of notice is not well founded.