Complainant

Respondent

Parties

Piotr  Przebierala

Bedroom Elegance  (Sales) Limited Bespace

Representatives

Brian Nolan Connect Trade Union

MP Guinness BL instructed by Ronan O'Brien, Gleeson McGrath Baldwin

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-00045381-001

27/07/2021

The Complainant commenced his employment as a Van Driver with the Respondent on 1 September 2016 and was paid €760 per week. He stated that he was unfairly dismissed from his employment on 1 June 2021 as a result both of a coughing gesture he jokingly made on 8 October 2020 and a post about the Respondent that he had put up on Facebook on 15 October 2020.

The Complainant stated that following a workplace incident relating to his inability to wear a face covering, his employer instructed him to go home on October 15 2020. While the Complainant stated on the complaint form that he understood from this instruction that he believed he had been dismissed, he asserted in sworn evidence at the hearing that he did not know if he had been dismissed.

Although the Respondent subsequently allowed him to return to work, he was also invited to take part in an investigation wherein allegations that he had coughed in the face of a fellow employee and posted a derogatory comment about the Respondent on Facebook were made against him. The Complainant accepted that he had made the Facebook post but stated that he had only coughed into his hand in the vicinity of another employee as a joke and denied that he coughed into his face, as alleged. His trade union representative, who was also present at the disciplinary hearing, stated that he was not afforded the opportunity to cross-examine three witnesses who were interviewed as part of the Respondent’s investigation into the allegation that the Complainant had coughed into a colleague’s face and highlighted that this was a breach of fair procedure.

The Complainant stated that he commenced employment with a new employer on 1 December 2021 but claimed that he suffered a heart attack three days later and has not worked since.

On the return to the office on 18 May 2020, following the Covid lockdown, the Complainant attended a health and safety induction which outlined the COVID 19 measures being implemented to prevent the spread of the virus. As the pandemic progressed, the Complainant became difficult about wearing his mask. As he worked in the vans and was out on the road, it was not easy to monitor his mask wearing. At no stage when reminded about wearing a mask did the Complainant provide medical evidence that he was exempted from wearing one. The Respondent also received a customer complaint that he would not wear a mask and was quite aggressive when asked to do so. When asked to wear his mask in the factory, he often got argumentative and other employees were unhappy as everybody was extremely concerned about the pandemic. 

On 15 October 2020, Mr Tom Farrell, the Managing Director spoke to the Complainant informally about his failure both to wear a mask and to use hand sanitiser on site. He explained the necessity to follow government guidelines to protect all staff and confirmed that he was required to wear a mask on site. The Complainant did not assert that he had a medical exemption for not wearing a mask. Following this conversation, the Complainant came into Mr. Farrell’s office and resigned from his employment. The Complainant aggressively expressed his dissatisfaction with having been told to follow the Government guidelines in wearing a mask and requested his P45. Mr Farrell informed the Complainant that he could discuss the matter with Ms Anne Carr in accounts to progress his resignation.

 The Complainant went into Ms Carr’s office and confirmed that he wanted a copy of his P45 as he had resigned from his job as a van driver. Ms Carr informed him that she would not be able to process this until the payroll date and the Complainant then left the factory.

On 16 October 2020, Mr. Farrell wrote to the Complainant. In that letter he stated “Having spoken with you on a number of occasions over the past few months regarding the non-wearing of a face mask or a face shield where you could not social distance; I informed you on a few occasions that you cannot work in the factory if you constantly refuse to wear a face mask or face shield. If you change your mind about the wearing of a face mask or face shield, please contact me. As you requested, I will issue you with your P45 along with all relevant hours and holidays you may have accrued to date”.

A letter was received from the Complainant in response dated 18 October 2020 wherein he stated that: “I informed you and your son that I cannot put anything on my face because it causes me distress, nervousness and makes me feel anxious. I would also like to mention that while carrying out the work I do, which is bending down, carrying large heavy furniture, loading and unloading the van, I need to breath with my full mouth and nose, which is guaranteed to me in the constitution and human rights that I will now quote”. The letter went on to quote a paragraph regarding “bodily integrity”. The letter went on to say “Please accept my human and constitutional rights that protect me. I would be obliged if you would please read through the enclosed declaration and keep it on file for your records. I cannot carry out my daily duties 100% if I wear a mask or a face shield. I enjoy working for your company and I work hardy (sic)today every day and I have abided by all other rules relating to the COVID guidelines. I ask that you please consider your decision after you have now read my situation and also how I feel when I wear a mask or shield. I hope to hear from you soon and we can come to some arrangement that suits us both.” While a self-declaration form SI No. 296 of 2020 was attached to the letter, no medical evidence was provided to support his suggestion that he was exempt from wearing a face mask.

On 29 October 2020, Mr Farrell wrote to the Complainant confirming that his P45 had been issued. By letter dated 30 October 2020, the Complainant wrote to the Manging Director and disputed that he had resigned stating: “at no stage have I done so nor do I intend to do so”. By letter dated 11 November 2020, Mr Farrell responded stating that at no point was the Complainant’s position terminated by the Respondent and highlighted that the Complainant requested his P45 on 15 October 2020. Nonetheless, Mr Farrell also stated in the letter that the Complainant was welcome to return to work on Monday 16 November but also highlighted that he would need medical certification to demonstrate that he was exempt from wearing a face mask. The Respondent subsequently received medical evidence that the Complainant was exempt from wearing a face mask on 15 November 2020.

Although the issue around the Complainant’s employment status had been clarified, he was on certified sick leave and was not found to be fit to return to work until 23 February 2021. Prior to his return, another employee, Mr X, raised an issue with the factory manager that had happened on 8 October 2020 which the factory manager brought it to the attention of the Managing Director on 16 November. Specifically, Mr X stated that the Complainant entered an office on the Respondent’s premises on 8 October 2020 without a mask and purposefully coughed on Mr X after he had been asked to put on a mask.

In addition, a Facebook post that the Complainant made containing defamatory comments, and in breach of the employer’s handbook, was brought to the Respondent’s attention by one of the Complainant’s colleagues.

Having been made aware of these incidents, the Respondent wrote to the Complainant on 25 November 2020 regarding three issues that came to light during his sick leave. (a) “It is alleged that you failed to comply with safety procedures, namely it is alleged that you refused to wear a face mask in line with the company’s COVID 19 policy on a number of occasions. (b) It is alleged that you committed an act of physical assault, namely it is alleged that you spat/coughed on the face of Mr X, a follow employee on 8 October in the plans office. (c) It is alleged that you took part in activities that could result in adverse publicity to ourselves, namely it is alleged that on 15 October you posted on your social media negative content about the company.”

On 5 February 2021, the Respondent held an investigation with the Complainant into the allegations made in the letter of 25 November 2020. The investigation was carried out by Tom Farrell and William O’Sullivan. In this meeting, the Complainant initially refused to comment on the allegations set out in the letter of 25 November and denied that the coughing incident ever took place. The Respondent then informed the Complainant that they had a witness and the Complainant then indicated that he did indeed cough but suggested that it was a joke. The Respondent then presented the Complainant with the allegation that he had made defamatory comments on Facebook about the company to which the Complainant replied that he knew nothing about it.

On 25 February 2021, the Respondent invited the Complainant to a further investigation meeting to be held on 5 March as the Complainant had simply denied matters in the first instance and therefore, they had not established all the facts. Despite numerous attempts to hold a further investigation meeting, the Complainant failed to attend and on 26 March 2021 responded that his employment had been terminated by Mr Farrell for not wearing a face covering on October 15 2020, and as such he could not have broken company policies as he was not an employee at the time he posted on Facebook. The Complainant then attended a further investigation meeting on 14 April 2021 and was accompanied by his union representative. The Respondent presented the Complainant with the signed statements from two of his colleagues claiming that he had coughed in their direction within a confined space without face protection. The Complainant disputed the incident date of 8 October 2020 and stated it was on 24 September 2020 that this had occurred. He went on to at first deny that he coughed directly at his workmate or in his general direction, however after further discussion he admitted to pretending to cough as a joke. In the meeting he accepted that on mature reflection it was in bad taste and he said he had subsequently apologised to his colleague. He went on to admit that he understood the dangers. The Respondent then addressed the social media aspect of the investigation and presented this post to the Complainant and asked if he had made it. He confirmed that he had done so and made no effort to apologise for doing so. The Complainant was provided with the minutes of the investigation meeting on the 26 April but did not respond with comments until the 21 May.

On 5 May 2021, the Respondent invited the Complainant to a disciplinary meeting to be heard by Conor Farrell, Production Manager which was held on 12 May 2021. The Complainant was represented at the hearing by Mr Brian Nolan of Connect Trade Union. Ultimately, having considered everything, Mr Conor Farrell dismissed the Complainant on 1 June 2021 on the grounds of gross misconduct. The letter confirmed that the explanations provided by the Complainant were unsatisfactory as he had admitted to making a coughing gesture in the direction of his colleague and had admitted making the social media post.

On 4 June 2021, the Complainant appealed that decision. On 9 June, Mr Michael O’Dwyer invited the Complainant to an appeal hearing on 16 June. The appeal hearing was heard by Mr O’Dwyer and Miss Anne Farrell. The appeal upheld the decision of the disciplinary officer, Mr Conor Farrell, and the Complainant was notified of this by letter dated 22nd June.

THE LAW

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

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 qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

Section 7 of the Act, in relevant part, makes provision as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismi7ssal, regard may be had….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

ANALYSIS

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is helpfully set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against. 

In the instant case, I note that the Complainant was dismissed on the grounds of gross misconduct because he was found both to have made a coughing gesture in the vicinity of his colleague during the Covid pandemic and posted a defamatory comment about the Respondent on social media one week later.

In terms of the substantive aspect, the two major planks of the Complainant’s case are that he made the defamatory post when he believed that he had been dismissed by his employer on 15 October 2020 but deleted it two days later and that he had only coughed in the vicinity of his colleague as a joke.

Having considered the evidence, I find that the Complainant’s coughing action in the vicinity of his colleague during a global pandemic was wholly unacceptable. Specifically, I have regard to the huge fear that many people had at this relatively early stage of the pandemic, namely on 8 October 2020 prior to the arrival of the vaccine, and am at a loss to understand how the Complainant could consider such a gesture to be funny or a joke. That said, while his actions were certainly unacceptable and a serious disciplinary sanction was appropriate, I do not consider that it would have been reasonable for the employer to have dismissed him based on the coughing gesture alone.

I must therefore now consider whether the defamatory Facebook post was sufficient grounds to dismiss the Complainant either as a standalone offence or in conjunction with the coughing gesture. Having reviewed the Employee Handbook, which the Complainant did not dispute he had received, I note that his Facebook post breached the Respondent’s policy on the use of social networking sites which stated that employees should not post false or malicious comments about the company on Facebook and that any such posting constituted gross misconduct. While I note that the Complainant’s representative Mr Nolan stated at the disciplinary hearing that he believed he was off payroll and was not working with the Respondent on 15 October 2020 when the Facebook post was made, it was striking that the Complainant himself did not provide any explanation for the defamatory post at the disciplinary hearing although he did apologise for it and highlight that he deleted it after 2 days.

Crucially, I noted, however when cross-examined at the WRC hearing, that the Complainant stated he did not know (my emphasis) if he had been dismissed following the meeting with Mr Tom Farrell on 15 October. Considering this sworn evidence, I cannot accept the assertion of his union representative, Mr Nolan, made at the disciplinary hearing that the Complainant believed that he was no longer working with the Respondent and was therefore not subject to their policies and procedures when he made the defamatory post on 15 October. Moreover, based on the evidence presented by the Complainant at the WRC hearing and having reviewed the correspondence between Mr Tom Farrell and the Complainant between 15 October and 11 November 2020, I am of the view that he believed he was temporarily laid off by the Respondent at the time he made the Facebook post on 15 October 2020 until such time as he no longer had to wear a mask at work. Given that he was therefore still in employment at the time and had not been dismissed as Mr Nolan asserted at the disciplinary hearing, I find that the policies and procedures of the Respondent still applied to him. While I recognise that the posting of a defamatory Facebook message constituted gross misconduct according to the Respondent’s employee handbook, I find that while the post was certainly inappropriate and merited a serious disciplinary sanction, it was not so defamatory as a standalone offence that it justified dismissing the Complainant on the grounds of gross misconduct.

Having decided that neither the coughing gesture nor the Facebook post constituted gross misconduct as standalone offences, I find however find that the dismissal was both reasonable and substantively fair when looking at the two instances of misconduct together as Mr Conor Farrell in his evidence stated that he did. Specifically, I recognise that the coughing incident as well as the Facebook posting occurred within a week of one another and constituted wholly unacceptable behaviour by an employee as I have outlined above. When examined together, I am satisfied that they caused the Respondent to have serious misgivings about the Complainant’s judgement as well as his general behaviour and when examined in combination reasonably caused the Respondent to lose trust as well as confidence in him and therefore terminate his employment.

Prior to making a decision on whether the dismissal was unfair, I must also examine if it was procedurally fair and note firstly that the Complainant was afforded a full investigation of the allegations made against him, that he was given the opportunity to respond to the findings of the investigation during the disciplinary hearing, was given his full rights of appeal in respect of the dismissal and was afforded the opportunity to be accompanied by his union representative at every stage throughout the process. Notwithstanding these rights having been afforded to him however, the Complainant’s representative, Mr Nolan, stated that he should have been given the opportunity to cross-examine the witnesses who made statements during the investigation process, as he highlighted at the WRC hearing, because of the contradictions in the evidence presented.

In considering whether the failure of the Respondent to afford the Complainant’s representative the opportunity to cross-examine the witnesses rendered the dismissal procedurally unfair, I note in the first instance that one of the grounds for the chair of the disciplinary hearing, Mr Conor Farrell’s, decision to dismiss, according to both his sworn evidence and the termination letter, was that the Complainant jokingly made a coughing noise in the vicinity of his colleague, as he stated himself at the disciplinary hearing, and not because he deliberately coughed in his colleague’s face as the three witnesses stated during the investigation. I also noted that Mr Michael O’Dwyer, who heard the appeal, stated that he also accepted that the Complainant was joking when he made the coughing gesture but considered that this action, in conjunction with the defamatory Facebook post, was sufficient to uphold the decision to dismiss. I find therefore that the decision by the Respondent to accept the evidence presented by the Complainant at the disciplinary hearing instead of relying on the disputed evidence presented during the investigation by the three witnesses, means that the dismissal was not procedurally unfair because the disputed evidence which the Complainant’s representative did not cross-examine was not relied upon.

Given that the dismissal was reasonable as well as both substantively and procedurally fair, I find that the Complainant was not unfairly dismissed.

I find that the Complainant was not unfairly dismissed for the reasons set out above.