ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039760
Parties:
| Complainant | Respondent |
Parties | Alex Roder | DGP Intelsius Teoranta t/a DGP Intelsius Ireland |
Representatives | Mr Pat F. O'Connor of O'Connor O'Donoghue & Co. LLP | Mr Pat Mullins of OFX O’Flynn EXHAMS Solicitors |
Complaint:
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-00051385-001 | 27/06/2022 |
Date of Adjudication Hearing: 16/11/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.
There were no issues raised regarding confidentiality in the publication of the decision.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
Background:
The issue in contention is the alleged Unfair Dismissal of the Complainant, a Customer Services & Admin Officer. The employment began on the 4th November 2019 and ended on the 31st March 2022. The rate of pay was stated to be €1,874 per month for a 30.5 hour week. |
1: Summary of Complainant’s Case:
The Complainant gave an Oral Testimony supported by his advocate Mr Pat O’Connor, Solicitor. He was dismissed by letter of the 21st March 2022 on the basis that he had 1. Contacted the Company Accountant, an external provider, to discuss a personal matter without Management permission and during Company time 2. Used the Company Account to Purchase Personal items without Management Permission. He appealed the Dismissal to Mr JW but was unsuccessful as the Dismissal was confirmed on Appeal -letter/e-mail of the 22nd April 2022 In his Oral testimony he stated that he had only contacted the Accountant to discuss a Company Wage issue as the General Manager, Ms MW, was very busy and had an ill Husband. In relation to Personal Purchases on the Company account he had aways done this with Permission from Ms MW. He had always paid the bill including the Vat using his own funds. In this case one purchase was without Ms MW’s direct permission as she was very busy and as she had always approved in the past, he had legitimately presumed she would agree. The suggestion that he had stolen from the Company was completely wrong. Nothing had been concealed in an underhand manner. He was due to take an extended medical leave (3/4 months during 2022), and this was a factor in the decision to get rid of him. He was accused of abusing the Management’s “Trust” specifically Ms MW and her Husband Mr JW. This was completely false. Mr. O’Connor cited case law, Looney v Looney UD 843/1984, Reilly v B of I (2015) 12 IELJ 72 & a recent Labour Court case Maguire v Tesco, to support his arguments. He referenced SI 146 of 2000, Statutory Code of Practice on Grievance and Disciplinary Issues to argue that the entire Discipline /Appeal process was tainted with unfairness and a lack of Independence at the Appeal Stage. Mr JW was the co-owner with Ms MW, his wife, and to suggest that he was Independent stretched credibility. In addition, the Dismissal penalty was grossly Disproportionate – the total value of the disputed purchases was less than €60 Euro, a trifling sum to lose a job over. The suggestion of a Breach of Trust was hard to understand as in the view of the Complainant nothing untoward had happened. He had only contacted, briefly, the outside Accountant, to query the tax position of a Christmas Bonus and his own rate of pay. He had a disability, and the employment was subsidised which made establishing his exact Pay Rate difficult. Ms MW had always been too busy to properly answer his queries. He did not feel that it was outside of normal Company business to raise a straightforward query. It was a small Company and run very closely by Ms MW and Mr JW. He had shown some independence which gave rise to an agenda against him. The Dismissal was completely unfair from a Procedural Point of View (SI 146 of 2000) and was in addition totally Disproportionate. The Complainant was also a person with a dyslexia diagnosis, and this was glossed over by the Respondents. Ms MW had been, stated Mr O’Connor, “Judge, Jury and Executioner” in a case replete with serious Procedural and Natural Justice failings. The Complainant was cross examined by Mr Mullins for the Respondent.
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2: Summary of Respondent’s Case:
The Respondents, Mr JW and Ms MW, gave an Oral Testimony supported by Mr Mullins, Solicitor. The Management had received advice from ISME and all paperwork was correct. In their Oral testimony, the Principals, Ms MW and Mr JW, emphasised strongly that the Respondent Company had been set up by JW on an “Ethical” basis. It employed a high proportion of staff with both Open and Hidden Disabilities. The Complainant was one such employee. A very high premium was placed on “Trust” between the Principals and the Employees. This was particularly so when Mr JW was unwell in late 2021 and early 2022. The Complainant by unauthorised use of the Company purchase routines to buy personal materials and by the personal use of the outside Accountants professional time (billed to the Company) had completely broken this Bond of Trust. This, personal purchases problem, exposed the Company to a possible VAT infringement issue with the Revenue and or a Revenue Audit. This was a serious matter. In this context his continued relationship with the Company was impossible and he had been let go. It was the first time in their history that an employee had been let go but the undermining of the Trust relationship was such that they had to take this severe action. In his Oral Testimony, Mr JW, who had heard the Appeal against Ms MW’s Dismissal decision, asserted his proper Independence and stated that he had considered all possible option short of Dismissal. Ms MW, his wife, had never discussed the case with him at home. She had been particularly vigilant in this regard. Under cross examination, from Mr O’Connor for the Complainant, he accepted that the actual cash value of the disputed Purchases was quite small, but it was the principle of Breach of Trust that was at issue. In addition, the Complainant would have known that referring queries regarding his own personal salary and Bonus to the outside Professional Accountant was inappropriate. The person to raise these queries with was Ms MW, effectively the General Manager. Over 90 minutes of Billable Time had been used by the Complainant. As final summary Mr Mullins pointed to the culture of High Trust in the Company. The Complainant had broken this. The ending of his employment was proportionate and justified. |
3: Findings and Conclusions:
3:1 The Law. – Natural Justice
In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.
In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:
“1.
The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.
2.
Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
3.
The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4.
The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.
5.
The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.
Put very simply, principles of natural justice must be unequivocally applied.”
More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.
3:2 The Role of the Adjudicator & the Band of Reasonableness principle
There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for Employer and effectively engage in a de facto rerunning of a Disciplinary case.
The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445
“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:
“The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”
The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.
Accordingly in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “band of Reasonableness”.
Notwithstanding the above Legal observations, all cases rest on their own evidence and factual matrix. This is examined below.
3:3 Examination of the Evidence, Natural Justice and Key Questions.
Taking guidance from Mr Justice Flood, quoted above, we need to reflect on SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures.
In summary we need to ask three initial questions
- Was the evidence against the Complainant gathered properly and put to him fairly with full opportunity (with representation offered/allowed) to present his defence ?
- Was the Investigator and more importantly the Appeal Person properly Independent? “nemo iudex in causa sua” is the Natural Justice principle.
- Was Dismissal from Employment a “proportionate” penalty?
Taking the first point it was clear from the Oral Testimony and Written Materials supplied that the evidence had been collected carefully and put to the Complainant. The Outside Accountant had been questioned and disputed Invoices were presented. The Complainant raised issues with the accuracy of some meeting minutes, but this was not a major issue. Letters of Invitation, drafted by ISME, had offered Representation.
As regards the Second question it is more problematic. It is a small Company and personal relationships were important. Ms MW was the operating Principal while Mr JW was ill. Her decisions and previous management decisions re Staff purchases and contacts with the Outside Accountant were a crucial factor.
While conscious of the ISME advice, the view of an outside observer such as the Adjudicator is that good Natural Justice would seem to indicate that to have her, Ms MW, acting as Investigator and Dismissal Decision maker was very open to serious Legal challenge on grounds of proper impartiality and proper objectivity.
Likewise, the hearing of the Appeal by Mr JW, her Husband and fellow Company Owner/Director, is also open to very serious questioning of the grounds of proper Independence.
Nonetheless, Mr JW, resolutely denied, that he had, in any way, been influenced by his Wife’s decision to Dismiss. He gave evidence under sworn Affirmation and was a very credible witness.
From an Adjudication viewpoint and having carefully reflected on the evidence and oral testimony the view has to be that Mr JW, while taking very conscious steps to maintain his decision-making independence, was simply too close to Ms MW to satisfactorily rebut the suggest of a lack of proper Independence.
Put simply an outside Person, (HR Consultant, ISME nominee etc) etc should have heard the Appeal.
The third question of the Band of Reasonableness is equally problematic for an outside observer. The Company, of a small size, had an almost unique culture of ethics and employment of staff who might have found it difficult to gain good employment elsewhere. In this culture Trust between all staff and the Managers was paramount and was part of the very fabric of the organisation. The Oral testimony of both Ms MW and in particular Mr JW was very focused on this point.
None the less Mr O’Connor for the Complainant argued strongly that to characterise invoice queries of less than €100 Euro and a disputed call to the outside accountant as “Gross Misconduct” was completely disproportionate.
Quoting Mr Justice Flood again at his point 5 is useful
The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.
The applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:
It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09
This approach has been followed in many Labour Court decisions and former EAT findings. For example, in UD2196/2011 the EAT, chaired by Mr McCarthy SC stated in relation a Dismissal
The adjective “substantial” means that the ground relied upon should be a matter of substance rather than form and should be a matter of gravity. In weighing the gravity of the matter against the penalty of dismissal the Tribunal must have “regard to all the circumstances” as the subsection requires. In other words, the Tribunal should decide whether the penalty of dismissal is proportionate to the offence. The doctrine of proportionality is now well established in Irish law since Cox v Ireland (1992 2 I.R. 503) and Heaney v Ireland (1994 3 I.R. 593) and elaborated in other cases since then.
Accordingly in this case a Dismissal for Gross Misconduct has to be seen from an Adjudication point of view as Disproportionate in view of the nature of the incidents involved and the lack of any prior issues or a disciplinary “track record”. There were other lesser options available.
However, in mitigation for the former Employer a major breach of Trust had taken place in a unique environment.
3:3 Adjudication Summary
In view of all the factors above but particularly the Independence of the Appeal and Proportionality Arguments the Dismissal has to be deemed Unfair.
In considering appropriate Redress (Section 7 of the Act) the behaviour of the Complainant ,in contributing to the dismissal, has also to be considered.
The Adjudication view is that the Dismissal was Unfair.
4: Decision:
CA: 00051385-001
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.
The Dismissal is found to be Unfair.
As regards Redress Section 7 (1) (c) (ii) is appropriate. This section applies where there is no financial loss arising from the dismissal and limits Redress to a maximum of four weeks remuneration.
The Complainant has been on illness absence relating to his background Disability since the date of the Dismissal. He was prescheduled to travel abroad for a course of treatment shortly after the date of the dismissal. He stated at the Hearing that he “could not predict when he would be available for work.”
In considering appropriateRedress“as is just and equitable having regard to the circumstances” ( Section 7 of the Act) the Adjudication view has to be that the Complainant contributed to his own Dismissal by taking what could be best described as a “cavalier” approach to the special relationships of Trust in what was in many ways a unique Company.
Accordingly, a Redress Lump Sum of €1,000 Gross is awarded. This equates to slightly over two weeks remuneration.
Dated: 05/04/2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Unfair Dismissal, Proportionality of Dismissal |