Complainant

Respondent

Parties

Robert  Newton

Go-Ahead Transport Services (Dublin) Limited

Representatives

Barnaba Dorda, SIPTU

 David Horgan, Stratis Consulting

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-00053582-001

07/11/2022

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

CA-00053582-002

07/11/2022

The complainant was employed by the respondent as a Bus Driver from 07/01/2019 and was promoted to the role of Supervisor on 05/01/2020.  On 18/08/2022 the complainant was involved in an incident with colleagues in a control room.  This gave rise to a complaint against the complainant.  This was investigated by the respondent, and it resulted in a disciplinary hearing.  Arising from this the complainant was dismissed for “inappropriate and unprofessional behaviour” on 14/09/2022.  An appeal upheld this decision.  The complainant submitted his complaint to the Workplace Relations Commission (WRC) on 07/11/2022.  The complainant is seeking reinstatement as a supervisor.  At the time of his dismissal the complainant was paid €572.00 per week.

The respondent’s representative opened their written submission to the hearing.  The respondent operates 30 public service bus routes which utilises over 200 buses and more than 650 employees.  The complainant commenced employment on 06/01/2019 as a bus driver and moved to the role of Depot Supervisor on 05/01/2022 and he held this role until his dismissal on 14/9/2022.

The role of Depot Supervisor involves the allocation of drivers to routes and busses and the daily garage operations.  This is a challenging role due to the need to manage people and operational issues as they arise.

On 18/08/2022 the complainant was informed by a bus driver that he did not know the route which he was assigned to. The complainant suggested to the driver that the Control Room would guide him along the route. This was relayed to the control room and an employee in the Control Room, (JF), contacted the complainant by phone and queried if this was the correct approach.  The complainant outlined that this was not his responsibility, and another colleague eventually assisted the driver.  At the request of the Control Room Manager, (FS), the complainant attended the Control Room to discuss the matter with the Control Room Manager.  The meeting was also attended by JF and following the behaviour and actions of the complainant JF submitted a written complaint.  JF was on prolonged sick leave following a period of work-related stress due to this incident.

The complainant was placed on paid suspension while the respondent conducted a comprehensive investigation and a comprehensive disciplinary process. The respondent considered an alternative to dismissal in the form of a move by the complainant back to a Bus Driver role, but the complainant rejected this proposal.  The complainant was dismissed on 14/09/2022 for “Inappropriate and unprofessional behaviour towards colleagues, in direct contravention of GAI performance and conduct guidelines”.  The complainant appealed this decision, but this was not upheld. 

The respondent’s representative referred to and read details of the complaint and various minutes of meetings at the hearing.

The respondent’s representative opened some legal submissions.  In Bank of Ireland v Reilly [2015] IEDC 241, Noonan J said:

“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(40 which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.  Section 6(7) make clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal.  This 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 UKEAR/0506/09/DM”.

It was submitted on behalf of the respondent that there is no credible basis upon which it can be alleged that dismissal was outside the range of reasonable responses open to the respondent in this case.  It is the respondent’s position that the complainant was guilty of gross misconduct due to his behaviour having regard to the supervisory management role he was employed to undertake.  The complainant had the benefit of a disciplinary process that is adopted by the Respondent and agreed with SIPTU.  He was given every opportunity to challenge the allegations against him and he understood what these allegations were.  The complainant was represented by his trade union or a colleague during the process.  The complainant rejected the offer of an alternative sanction.

In summary the respondent’s representative submitted that all its witnesses chose not to be interviewed or cross examined.  JF was not interviewed as he was on certified sick leave due to the immediate impact this incident has on him.  It is clear that the behaviour complained of was unprofessional and calling a colleague a “dickhead” is inappropriate.    All the information gathered during the investigation was given to the complainant.  The policy in relation to behaviour provides an illustrative list and cannot be expected to provide specifics which would cover every eventuality.  The suspension of the complainant was not punitive and given what happened there was a valid reason for doing so.  The respondent denies that the dismissal of the complainant was in any way predetermined.  The disciplinary hearing considered all options, and it should be noted that the complainant refused employment in another role.  The respondent followed fair procedures at all stages.  The complainant contributed to his dismissal.  In relation to the appeal letter this is not under scrutiny as far as the respondent is concerned. 

Without prejudice to its position the respondent does not see reinstatement as a viable option given the nature of what occurred on 18/08/2022.

As the complainant was dismissed for gross misconduct the claim under the Minimum Notice and Terms of Information Act is not conceded.

The complainant had been a supervisor for over two years prior to his dismissal.  He was very loyal to the company and had no sick leave.  He was never in any trouble with the company.  The complainant, who worked in the supervisory department, was responsible for the allocation of drivers and buses to the 30 routes.  The control room were responsible for monitoring drivers and diverting traffic to assist drivers who were out on the network.

Prior to the incident on 18/08/2022 the complainant had made several complaints – verbal and written - about the control room employees and he believes that none of these were addressed by the respondent.

On 18/09/2022 the complainant was approached by a bus driver who informed him that he was unfamiliar with his allocated route.  The complainant believed that this driver should have been familiar with the particular route as he had undergone special training.  As there were a limited number of drivers available to swop the complainant suggested to the driver that he could contact the control room if he required guidance or assistance.  The complainant was then contacted by a member of staff in the control room, (JF) who complained that that the complainant had sent a driver on a route without sufficient knowledge of that route.  The complainant reminded JF that guiding drivers was the responsibility of the control room but as JF had refused to do so he asked another colleague, (ER), to assist the driver which he did.

Shortly after this conversation the Control Room Manager, (FS), came into the complainant’s room and summoned him to his office.  As FS was more senior to the complainant, he went to his office expecting a private conversation with FS.  However, on arrival FS began criticising the complainant in front of two other control room employees, FS and GN.  He told the complainant that he should not have assigned an untrained driver to the route and that the control room staff did not have the capacity to guide drivers anymore.  The manner in which this occurred made the complainant feel belittled and harassed as he was shouted at in front of everyone.  Two other employees in the control room joined in and added to the belittling of the complainant.  One of the employees, FS, threatened to make the complainant’s life a living hell and the other employee, JF, became so aggressive that the Control Room Manager, FS had to hold him back.

At that point the complainant was provoked and lost his composure and expressed his critical views about FS’s team members and make reference to the fact that he had more experience than they had all had combined. The following day the complainant was suspended with pay because JF submitted a complaint against the complainant.

The complainant’s representative highlighted a number of concerns in relation to the investigation.  The respondent failed to particularise what was meant by “inappropriate and unprofessional behaviour”.  The respondent interviewed a number of witnesses but only two of the three witnesses to the incident were interviewed.  The person who made the complaint, JF, was not interviewed as part of the investigation.  It was clear from the minutes of the meetings that it was the control room manager who requested the complainant to attend the control room in order to challenge the complainant’s decision making.  He done this in the presence of other colleagues.  Other witnesses confirmed that the complainant returned to his own area after the incident, and he was agitated by the events and that he felt threatened by the Control Room Manager.

The complainant as part of his meeting with the investigator stated that he did not use the word “dickhead” and that he was threatened, belittled and harassed by the Control Room Manager in the presence of other employees.  The complainant also told the investigation that the Control Room Manager told him that he would make his life hell.  The complainant also told the investigation that he believed that no one in the room acted appropriately during that incident.  The complainant agreed that he “shushed” JF when he tried to speak.  The complainant also apologised to the Control Room Manager and stated that he would have no difficulty apologising to JF if he was given a chance to do so.

At the investigation meeting the respondent wanted to investigate another matter which occurred on 04/07/2022 and following the intervention of the complainant’s representative this was dropped as the matter was dealt with and closed.  However, this was raised again at the appeal stage of the process and the appeal outcome letter dated 22/09/2022 confirms this.

The complainant attended a disciplinary hearing on 26/08/2022 and the allegation which was put to him was that of “inappropriate and unprofessional behaviour” on 18/08/2022.  This was given the label of “gross misconduct”.   The complainant was informed that unless he accepted a demotion he would be dismissed.  This was rejected by the complainant, and he was dismissed.

The complainant appealed the decision, and he attended an appeal hearing on 12/09/2022.  This was chaired by Mr Bradley Faithful, Operations Director and Ms Ciara Gallagher, Head of People who was the note taker.  The complainant’s appeal was not upheld.  It was submitted that the following passage from the appeal letter is significant:

“We believe that your behaviours shown were unacceptable for a colleague in a supervisory position and not only did the investigation look at the incident on the 18th August 2022, as another incident involving yourself and the same controller was reported in July and during the initial investigation your union representative at that time advised the investigation panel that they did not want to discuss the July incident therefore the statement from the controller was taken on the balance of probability as the union wanted no other statement considered for that incident.  Therefore 2 incidents regarding behaviours within a short period of time is very serious and deemed as gross misconduct”.

The complainant’s representative submitted that this passage is clear evidence that the complainant’s dismissal was unfair.  It is clear that the appeal hearing took into account a previous incident which was closed and was not part of the investigation or disciplinary process. 

A number of legal submissions were made on behalf of the complainant. 

Section 6(1) of the Unfair Dismissals Act states: “Subject to the provisions of this section, the dismissal of the 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(7) provides: “without prejudice to the generality of subsection 1 of this section, in determining whether a dismissal is an unfair dismissal, regard may be had, if the Rights Commissioner, the Tribunal or the Circuit Court or as the case maybe considers it appropriate to do so –

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

b.      To the extent (if any) of the compliance or failure to comply with the employer in relation to the employee, in relation to the procedures referred to in section 14(1) of this Act with the provisions of any Code of Practice referred to”.

The case of Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 where the High Court set out the basic principles of fair procedures:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct:

a.   The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

b.   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.

c.    The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

d.   The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

e.    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.

f.     Put very simply, principles of natural justice must be unequivocally applied”.

The complainant’s representative submitted that the respondent failed to provide the complainant with a clear and transparent allegation and “then mutated two incidents at the appeal process” which was not brought to the attention of the complainant and he only became aware of this fact when the outcome of the appeal was communicated to him.  The complainant is still somewhat unclear which of his specific actions amounted to “inappropriate and unprofessional conduct”.

The case of Allen v Dunes Stores [1996] ELR 203 was referred to by the complainant’s representative.  While that case dealt with sexual harassment the core principles emanating from it can be applied to the complainant’s case. 

1.   “There is an onus on an employer to inform, educate and instruct its employees on sexual harassment.

2.   Sexual harassment is a broad category of offence and comprises conduct of varying degrees of seriousness.

3.   There should be a range of penalties commensurate with the seriousness of the offence which can be imposed in a particular instance.

4.   Dismissal in this case was disproportionate to the behaviour complained of”.

It is the complainant’s case that the respondent failed to particularise what inappropriate and professional conduct is and in the respondent’s policy [Performance and Conduct Guidelines] list of what constitutes gross misconduct does not include these words.

A number of other cases were opened by the complainant’s representative which looked at the definition of gross misconduct and the question of proportionality and reasonableness.  The case of Noritake (Irl) Ltd v Kenna (UD88/1983) set out the test for reasonableness:

a.      Did the company believe that the employee misconducted himself as alleged?

b.      If so, did the company have reasonable grounds to sustain that belief?

c.      If so, was the penalty of dismissal proportionate to the alleged misconduct?

The complainant’s representative submitted that while the respondent makes an assertion that it considered two sanctions there were a number of alternative sanctions in their policy that could also have been considered, for example, suspension with pay, deployment to a different role, suspension of benefits and the possibility of a range of warnings.

The complainant’s representative noted that in the case of Maryland v HSS Ltd UD 1438/2004 the tribunal echoed the rationale previously provided in Taylor v Parsons Peebles NEI Bruce Peebles Ltd [1981] IRLR 119: “the proper test is not what the policy of the respondents as employers was but what the reaction of a reasonable employer would have been in the circumstances.  This is not to say that the conduct can be condoned but to apply a rigid sanction of automatic dismissal in all circumstances is not in our view what a reasonable employer would have done”. 

In the case of McSorely v Minister for Education and Skills [2012] IEHC 201, Hedigan J outlined the proportionality test which was set out in Heaney v Ireland [1994] 3 IR 539 in which Costello J held: “The means chosen must pass proportionality test.  They must (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational (b) impair the right as little as possible; and (c) be such that their effects are proportional to the objective”.

The complainant’s representative also submitted that he suspension of the complainant was unnecessary and was not justified.  The case of The Governor and Company of the Bank of Ireland v James Reilly [2015] 26 ELR 229 cited as an example where it was held that “suspension was not necessary to facilitate the proper conduct of the investigation and/or the disciplinary process.  Rather, the suspension was an expression by the plaintiff of its view of the seriousness of the matter and its resolve to punish those responsible accordingly”.

The complainant’s representative submitted that it was their case that:

a.      The allegations were unclear and not transparent, and specifically no clear allegation was put to him during the investigation process.

b.      The respondent failed to clarify what his “inappropriate and unprofessional behaviour” was as these were not contained in the complaint made by JF.

c.      The respondent wanted to include another matter in the investigation.

d.      The letter of dismissal failed to outline what the precise allegations against the complainant were.

e.      The appeal outcome letter stated that the inappropriate and unprofessional behaviour was solely in relation to JF and did not reference any other employee.

f.       The respondent has shown a clear lack of consistency in that the other employees who were involved in the incident on 18/08/2022 were not held to account.  There is a clear statement from the Control Room Manager that he had to hold FJ back because he was concerned that “he might do something”.

g.      The complainant complained about the manner in which the Control Room Manager handled the meeting on 18/08/2022 and in particular the manner in which he was belittled, harassed and threatened.  The respondent decided not to investigate this matter.

h.      The respondent did not see anything wrong with the behaviour of the other employees involved in this incident.

i.       The respondent failed to take account of the complainant’s mitigating circumstances.  He acknowledged that he lost his composure at the meeting.  However, the complainant and others confirmed that there were tensions between the control room and the complainant’s department for some time. It was also confirmed that the employees were working in a stressful environment due to their workload.

j.       The manner in which the Control Room Manager sought to deal with the issues was most unprofessional and created an openly confrontational environment.

k.      The complainant apologised to the Control Room Manager for this behaviour at the meeting.

l.       The complainant had no prior warnings on file.

m.    The decision to dismiss the complainant was predetermined from the outset with the suspension, labelling of the allegations, lack of consistency and no rationale for the dismissal.

n.      The complainant was the only employee singled out and there was no account taken of the tensions and workload that the employees complained about.

o.      The complainant refused the offer of demotion due to the humiliating consequences but his offer of mediation as an alternative solution was not considered.

The respondent failed to adhere to the principles of fair procedures and neglected to properly consider all the circumstances of the case.  The attempt to include another allegation during the investigation was an attempt to change the allegations.  The appeal process was justified its decision to uphold the dismissal by including another allegation which was not put to the complainant of formed any part of the investigation or disciplinary process.  The sanction was clearly disproportionate.  At the hearing it was confirmed that he was seeking reinstatement in his former role as a supervisor.

Comprehensive submissions were received from the respondent and the complaint in relation to this case.

This is a complaint pursuant to the Unfair Dismissals Act.  The complainant commenced employment on 05/01/2019 and ended on 14/09/2022.  He worked as an Operations Supervisor and was responsible for managing the daily bus garage operations and allocation of drivers to the various routes. 

The fact of dismissal is not in dispute. The legal onus is on the respondent to show that the dismissal was not unfair.  In this case, the dismissal arose from the as a result of the complainant’s “Inappropriate and unprofessional behaviour towards colleagues” during an incident on the respondent’s site on 18/08/2022.  At the time of his dismissal the complainant was paid €572.00 gross per week.  His complaint was received by the WRC on 07/11/2022.

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.

The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of the above sections of the Act requires me to consider whether or not the respondent’s decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances.  It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish either the guilt or innocence of the employee.

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrongdoing.  The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

As outlined above it is also the function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  In this case the respondent provided no witnesses for the hearing notwithstanding the fact that two representatives from the respondent were present at the remote hearing.  If the respondent decided not to provide any witnesses, then they cannot rely on their evidence. 

The silence of the respondent’s witnesses has no explanatory or evidential value.

The incident which led to the dismissal of the complainant and his colleagues took place on 18/08/2022.  The complainant was suspended, and the respondent commenced an investigation the following morning, 19/08/2022.  The hearing was not provided with any terms of reference for this investigation.  The complainant was interviewed on 25/08/2022.  It is clear from the minutes of this meeting that the Lead Investigator was provided with a brief that he was to investigate the incident of the 4th July and the incident of 18th August.  The absence of the terms of reference is significant.  The lead investigator stated at the meeting that “There is nothing anywhere stating that the incident of the 4th of July has been dealt with”.  While the investigation proceeded to deal with the incident on 18th August and the complainant outlined his version of the events.  At no stage was the employee who made the complaint interviewed.  I understand that this employee was on sick leave after this incident.

Prior to his meeting with the investigation team the complainant specifically requested that he wanted those involved in the incident “to be available for purposes of cross examination as this is a gross misconduct case, I feel the need to call all involved”.  The respondent notified the complainant that all of those involved had declined to attend and that “they are not compelled to agree to be cross examined”.  The complainant’s representative contacted the respondent to put them on notice that “where witnesses decline or refuse to attend for the purposes of cross examination then any statement/evidence gathered from them cannot be relied upon in the decision making”.

A right to fair procedures and natural justice in implied into contracts of employment.  These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment.  The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process.  It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made.  While these rights may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters.  Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer.  In Borges v. The Fitness to Practice Committee [2004]1 IR 103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures.  In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

In the Supreme Court case, Zalewski v. Adjudication Officer and WRC [2021] IESC 24 the Court was critical of the fact that there was not express provision for cross examination in the Workplace Relations Act, 2015 although it occurred in practice.  It held that this was a fundamental aspect of constitutional fair procedures.  The Court emphasised the benefits of cross-examination as a core part of fair procedures:

“As long ago as Re Haughey, these features of court proceedings, and in particular, the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination … was one of the rights without which no party could hope to make any adequate defence of his good name.’”

As previously noted, the respondent elected not to provide any witnesses to the Adjudication Hearing which would have provided an opportunity for cross examination.

A disciplinary hearing, conducted by Mr William Cullen, Regional Operations Manager, took place on 12/09/2022 and the outcome was that the complainant was guilty of “wholly inappropriate and unprofessional” behaviour.  The complainant was advised that this was deemed to be gross misconduct and the two options outlined were summary dismissal or demotion to driver grade.  The complainant declined the demotion option and so was summarily dismissed. 

In his letter confirming the complainant’s dismissal Mr Cullen took into consideration the sick leave of a colleague who was also involved in this incident.  The respondent failed to provide any evidence that the actions of the complainant “led to your colleague requiring medical intervention for stress, which was a direct result of the encounter with you on that day and has led to a prolonged period of sick leave for that colleague”.  While there are sensitivities about an employee’s sick leave, it remains a fact that this was a factor which the decision to dismiss the complainant relied on.  The complainant and had no opportunity to cross examine the employee concerned or be provided with any verification for this assertion.  It is unclear how the disciplinary hearing was made aware of this given that the employee who made the complaint was never interviewed.  The disciplinary hearing did not disclose this to the complainant at the hearing. If the respondent had issues in disclosing this information to the complainant or his representative, it is clear that they had no such issues in disclosing this same information to the disciplinary decision maker.  Taking that into account it would appear that the disciplinary hearing was compromised by the fact that some information was provided outside of the disciplinary hearing.

The complainant appealed the decision to dismiss him, and this was heard Mr Bradley Faithful, Operations Director, on 26/09/2022 and attended by Ms Ciara Gallagher, Head of People who acted as note taker. The decision to dismiss was upheld.  The letter confirming the outcome of the appeal noted that the appeal took into account the incident on 4th July and noted “Therefore, 2 incidents regarding behaviours within a short period of time is very serious and deemed as gross misconduct”.   I accept the complainant’s position that as the incident of 4th July was dealt with, and no warnings issued, it should not have formed any part of the appeal deliberations.   At no stage was the complainant given an opportunity to respond to this at the appeal stage. At the hearing the respondent’s representative noted that the appeal letter was not under scrutiny.  The appeals process is a vital part of any disciplinary procedure.

In an Employee V an Employer ADJ-0000381, on the subject of appeals, the Adjudication Officer stated:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course.  It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance.  An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.”

The complainant attended the appeal hearing in good faith and was represented by his trade union.  It was imperative that this process was conducted in a manner that did not show bias.  The reasoning declared in the appeal outcome letter which includes a previous incident which was not put to the complainant, clearly influenced the decision maker. This is a serious procedural flaw on the part of the respondent.

The appeal hearing failed to take account of any mitigating circumstances put forward by the complainant. There was no weight given to his previous unblemished record, his cooperation with the investigation and disciplinary processes and his acknowledgement that his actions, and those of his colleagues, were inappropriate.  There was no consideration given to the fact that this incident involved a number of employees.  There were a range of options in the respondent’s disciplinary policy which, at a minimum, deserved some deliberation by both the disciplinary hearing and the appeal hearing.  The appeal letter clearly ignored the complainant’s submission that he wished to raise a complaint about the Performance Manager as not being serious as otherwise he would have submitted this complaint earlier.   No evidence of any timelines in the respondent’s policy was provided to justify the dislodgement of the complainant’s complaint.

The decision of the Court of Appeal in Iarnród Eireann v McKelvey [2018] IECA 346 gives clear guidance on the precise employee rights when an employee is faced with allegations of gross misconduct.  Mr McKelvey had been accused of fraudulently using a fuel card.  Although the case concerned the right to legal representation in a disciplinary case, which was subsequently adjudicated upon in the Supreme Court, the Court of Appeal took the opportunity to positively reaffirm and identify the precise rights to which Mr McKelvey was entitled as part of fair procedures in a formal disciplinary procedure:

(i)               “His right to know the nature of the complaint/allegation against him.

(ii)              His right to know the procedure to be followed in the course of the investigation.

(iii)            His right to know the potential implications of the complaint/allegation should it be established, i.e., the sanction/sanctions that might be imposed.

(iv)            His right to be heard in relation to the complaint/allegation and to make representations in relation thereto.

(v)              His right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses.

(vi)            His right to call witnesses in support of his stated position.”

The complaint in this case was entitled to the same rights.

Arising from the foregoing it follows that the respondent has not dislodged the presumption that the dismissal was unfair arising from the disproportionate sanction of dismissal. The respondent’s failure to provide any witness evidence at the hearing to support its case is incomprehensible. The importance of fair procedures in cases involving dismissal on grounds of misconduct has long been set out in case law.  Cross examination is an entitlement for the complainant under the principles of natural justice.  Overall, I find that there have been procedural flaws in the investigation, disciplinary and appeal processes which resulted in the dismissal of the complainant. It is difficult to understand why these deficiencies were not recognised at the disciplinary hearing, the appeal hearing or during the appeal process. 

Where procedural deficiencies are identified these must be considered in line with section 6(1) of the Act which states that “having regard to all the circumstances.”  In that context I note the case of Elstone v CIE (High Court, 13 March 1989, unrep.) it was held:

“that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s. (6)1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of the other.”

The case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J held that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result.”

Having regard to the foregoing points, the totality of the limited evidence presented and the cumulative effect of the shortcomings identified, I find that no reasonable employer would have dismissed the complainant in the circumstances.  In the light of same, I find that the dismissal of the complainant was unfair for the purposes of the Acts and the complainant’s claim is well founded.

Having found that the complainant was unfairly dismissed, I must now consider the remedy and note that the complainant is seeking re-instatement. 

I have given very serious consideration to re-instatement.  I note the complainant has accepted that his behaviour was not appropriate, but he did not act alone.  I have heard the respondent’s objection to the prospect of the complainant returning to his employment.  I cannot accept that a verbal interaction with colleagues can be the basis for an employer to lose faith in an employee with an unblemished record and who performed his duties in a challenging environment in a satisfactory manner.  The complainant was not dismissed on the grounds that his misconduct was “criminal or quasi-criminal in nature”[Desmond Brennan v Institute of Technology Carlow, UD281/2000] such as assault, fraud or theft.  In such circumstances it would be categorical that the bond of trust between the parties would have collapsed.  The respondent’s representative did not advance any concerns that the complainant would be likely to repeat the behaviour again.   The event on the 18th August 2022 was unfortunate, but I do not believe the complainant should have lost his job as a result.  Due to the nature of the complainant’s role, it is possible that the bond of trust can be restored to the extent that a reasonable professional working relationship can be established.

I do find that the complainant contributed to the situation he found himself in.  I accept that he participated constructively in the investigation and disciplinary process and took the advice of his representatives.

The respondent is directed to re-engage the complainant in his previous role as a Depot Supervisor from the date of this decision.  The period from the date of his unfair dismissal to the date of his re-engagement shall be regarded as a period of unpaid suspension.

CA-00053582-001: I decide that the complainant should be re-engaged in his previous role as Depot Supervisor from the date of this decision.  The period from the date of his unfair dismissal to the date of his engagement shall be regarded as unpaid suspension.

CA-0003582-002: I decide that this complaint is not well founded.

Unfair dismissal.  Re-engagement.