Complainant

Respondent

Parties

Gerard  Maunsell

Richard Boyle & Sons (2004) Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Miriam McGillycuddy, Miriam McGillycuddy Solicitors

Terence O'Sullivan, TJOS Solicitors

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-00048294-001

24/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048294-002

24/01/2022

I conducted two remote hearings in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. Both sides were given a full opportunity to present their evidence and cross examine the other party, of which they both availed of extensively.

The Complainant swore an affirmation. On the second day, a witness for the Complainant, Mr Ger Murphy, gave evidence on affirmation.  Mr Adrian Boyle, General Manager of the Respondent gave evidence on affirmation. Mr Damian McCarthy of HR Buddy and the Respondent’s HR Advisor gave evidence for the Respondent on affirmation.  There are other parties referred to in the evidence who were not present at the hearing and therefore, in the interest of fairness I have chosen to use their initials. 

The Complaint Form received by the Workplace Relations Commission on 24 January 2022. The Complainant’s complaints of unfair dismissal and payment of wages were contested by the Respondent. Both parties agreed the relevant details on the Complaint Form were correct at the hearing. It was agreed between the parties that the Complainant commenced employment on 6 April 2016, worked 40 hours per week and earned €540 gross per week.

Submissions and evidence were exchanged by the parties and relied upon at the hearings.

CA-00048294-001

It was the Complainant’s evidence that he was in the canteen on 12 November 2021 when RR entered the canteen and said, “Maunsell you bigot, stop taking the soap”. The Complainant replied; “fuck you R“ and he threw the soap in his direction. The Complainant descried his relationship with RR one where they “did not speak to each other”.

It was the Complainant’s evidence that at approximately 4pm on 12 November 2021 he was asked to attend Mr Boyle’s office and told that an incident happened that morning. The Complainant stated he replied asking what Mr Boyle was talking about, there was no “accusation” put to him. The Complainant stated he was suspended with pay. It was his evidence that only when he requested the statements 3 or 4 days later did find out what he was being accused of.

At the meeting in the hotel, the Complainant told Mr Boyle and Mr McCarthy that he did not recognise the witness statements as they were contradictory. He asked to read out his prepared statement at the meeting but was interrupted “at least 5 times by Damian McCarthy”. The Complainant noted in his evidence that Mr McCarthy drew an arrow on his statement. The Complainant gave evidence that he apologies on a number of occasions, but this was not accepted. The Complainant stated in his evidence that knew he was wrong and put his hands up at the meeting. He said he used “abusive language” and apologised for this but “they did not want to listen.”

It was the Complainant’s evidence that Mr McCarthy asked him a number of times was he a “racist” and told him to “grow a pair of balls”. The Complainant described the meeting as getting “hot and heavy” with Mr Murphy told to sit down, that he was only a representative around which time Mr Boyle called a break.

It was the Complainant’s evidence that he was asked to sign the minutes of the meeting and the four people signed the minutes.

On 9 December 2021, the Complainant attended an appeal meeting. The Complainant gave evidence that he raised issues with the statements; MH’s statement was only initialled and not signed and he was not there for the incident, MD was the only one that signed the statement and DOB’s statement was withdrawn. The other ground of appeal was the change in RR ‘s story. The Complainant received the outcome of the appeal and confirmation of termination of his employment, which took effect 2 days before Christmas, via email with a copy thrown in his letter box. He did not believe he received minutes of the appeal meeting.

In terms of his financial loss, he said it was hard to get work at that time of year, January – February 2022. It was the Complainant’s evidence that he secured work at the end of February 2022 working shifts which differed from working 5 days with the Respondent from 8.30am – 5.30pm. He earned €560 per week gross.

The Complainant was asked about the words he used to RR under cross examination. It was put to the Complainant that he said, “fuck you, you fucking prick” which the Complainant confirmed as being correct. It was further put to the Complainant that he said, “go back to your own fucking country, you fucking cunt” and asked why the Complainant did not state this before today. It was the Complainant’s evidence that he said he used abusive language and requested the signed statements to clarify what he had said. The Complainant said he did not recall those words being said. The Complainant later sated that he never mentioned the words “foreign cunt”

Asked about his apology and if he apologised on the day of the incident, the Complainant stated he did apologise in his prepared statement. Asked why he did not apologise to RR, he said that he never met him again and that he apologised to the company, and all involved.

It was put to the Complainant that he failed to put any version of events forward at the meeting to which the Complainant responded that he stated at the disciplinary meeting he wished to read out his prepared statement but was contradicted several times.

The Complainant confirmed he received the statements in advance of the meeting but was of the view that they were not “proper statements” as they were not signed. He was asked about his contribution to the meeting which lasted from 11am – 12.45pm, which the Complainant stated he relied on his prepared statement. This was challenged as only taking 2-3 minutes to read a prepared statement and what went on for the remaining time.

The Complainant’s conduct at the meeting was put to him and had he conducted himself “differently at the meeting with Adrian Boyle and Damian McCarthy you would not have been dismissed.”

It was put to the Complainant that the minutes do not reflect any comment by Mr McCarthy as claimed to “grown a pair of balls” and that his was not raised after the minutes were received or at the appeal.

The Complainant was asked about his financial and his work aside from his position with the Respondent which he started in 2007.

The Complainant was re-examined on the email he sent on 30 November 2021 with the grounds of appeal.

Upon inquiry the Complainant was asked about the initial meeting with Mr Boyle and what was put to him, to which he replied, “nothing was put to me”. It was his evidence that no allegation was put to him nor were the statements provided to him. Asked about the reason why he was suspended, it was his evidence that Mr Boyle told him he had to investigate the alleged incident.

The Complainant was asked about the invitation to the disciplinary meeting and what was his understanding as to the allegation against him. In reply, the Complainant stated, “mostly harassment was what I picked out from it and fighting”.

Mr Ger Murphy gave evidence on behalf of the Complainant as he attended the disciplinary meeting with the Complainant. It was Mr Murphy’s evidence that the Complainant was trying reading out his prepared statement, but Mr McCarthy was “trying to make him say he was a racist” and “grow a pair of balls” and kept interrupting him. Mr Murphy recalled that the Complainant tried to apologise at the meeting. It was his evidence that Mr McCarthy and Mr Boyle didn’t seem to want to listen to what the Complainant was trying to say.  Mr Murphy stated in his evidence that he confronted Mr McCarthy and said he was “trying to do a hatched job on him” to which Mr McCarthy told him to take that back and he refused. Mr Murphy described being told to sit down and be quiet.

Mr Murphy gave evidence that he attended the appeal meeting with the Complainant and was of the view that the appeal decision “done and dusted”. He stated that the Complainant tried again to apologise and agreed that it would not happen again. Mr Murphy gave evidence that he was given the opportunity to speak at the appeal meeting.

Mr Murphy was cross-examined by the Respondent’s solicitor. He was asked what the Complainant told him about the incident to which he replied that he didn’t use the words.

The Complainant relied on the Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, The Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241, A Sales Executive v A Software Company [2022] ADJ000-27573, O’Mahony v Cork Association for Autism [2021] ADJ-00029377 and A Security Officer v A Security Company [2020] ADJ-00028004.

CA-00048294-002

It was the Complainant’s evidence that from 6 April 2016 to 26 June 2019 he worked an additional 2.5 hours per week but was not paid for. It was submitted that the due as of 15 December 2021 was €2,587.50.

CA-00048294-001

Mr Boyle, General Manager, begin his evidence by setting out the events of 12 November 2021 when he received a complaint from one of his staff as against the Complainant.  Mr Boyle gave evidence that the complaint was in relation to an incident that happened at 8.30am where the Complainant said to a colleague, RR; “you should go back to your own fucking country, you foreign cunt.” Followed by the Complainant taking a soap bottle and throwing it at him. The next steps taken by Mr Boyle were to meet with the 3 other employees in the canteen at the time, MD, MOD and BOH, and seek their version of events. Mr Boyle gave evidence that their explanation of what had happened in the canteen corroborated with that of RR. Mr Boyle then met with the Complainant on the same day when he explained there had been allegations against him and asked for the Complainant’s version of events. It was Mr Boyle’s evidence that the Complainant, “refused to acknowledge what he said” despite being given “amble time” to explain himself. He explained that the meeting was in his office at approximately 5pm for 10 -15 minutes and described the conversation as being “broad”. Mr Boyle stated that where the Complainant remained silent, he felt he had “no choice only to inform him of the seriousness of the investigation” which resulted in the suspension of the Complainant from the workplace.  Mr Boyle’s notes of the events of the day were presented in evidence.

On 17 November 2021, an unsigned letter of invitation issued to the Complainant inviting him to a disciplinary hearing “[f]ollowing investigation of a formal complaint made against you.” There was an extract from the Handbook related to “anenvironment free from bullying, intimidation and harassment and promotes dignity at work for all employees”.  The letter continues:

“It is alleged that in the course of your duties, your actions have raised grave concern, whereby on 12/11/2021. You carried out the following:

(a)    Fighting , threats or acts of physical violence

(b)    Immoral or indecent conduct

(c)     Breaches of safety rules

(d)    Racial Harassment

Should you or a representative attending the hearing have any accessibility requests for the hearing, please advise and arrangements for accommodation will be made.”

On 22 November 2021, Mr Boyle gave evidence that he attended a hotel with Mr Damian McCarthy to hold a disciplinary hearing with the Complainant and his accompanying colleague, Mr Ger Murphy. The meeting was described by Mr Boyle as being approximately 1.5 hrs long with the Complainant making “no response to the allegation to the words used to RR” and he could not “condone or gloss over what was said” and on this basis decided to dismiss him for gross misconduct.

On 25 November 2021, Mr Boyle held an outcome meeting at which he stated that the Complainant did put forward his version of events. An unsigned letter of the same with the subject “Disciplinary hearing result” which repeated the allegation of the letter of 17 November 2021. The decision continues:

“Despite the opportunity to offer your side of events, you continuedly refused to offer a denial or defence to the accusation and witness accounts that you had racially abused a fellow employee on the 12/11/2021. The company has been left with no other choice but to dismiss you from your employment.”

Mr Boyle gave evidence that an appeal hearing was heard by PK and KM but it was he, himself who made the decision to uphold the termination at the appeal stage and signed the letter dated 15 December 2021.

Mr Boyle stated that the Complainant made no apology on 12 November 2021 for the words used to his colleague or at any stage through the disciplinary process. Mr Boyle did accept that he made an apology to the company but not addressing RR.

Under cross examination Mr Boyle confirmed there was an anti-bullying policy in place but there was no training, nor could he confirm if there was an anti-racism policy in place. He stated there was a handbook, but it was not in place. When asked about the Complainant’s apology, it was Mr Boyle’s evidence that the apology was insufficient and not directed at RR, this is something the Complainant should have known. Mr Boyle confirmed that the Complainant had no disciplinary record. In relation to the decision to dismiss the Complainant for gross misconduct Mr Boyle stated, he deemed the words used were of a level of serious misconduct.

Mr Boyle was asked about the grievance raised by the Complainant, to which he replied that he had asked the 3 witnesses had they heard RR calling the Complainant by his surname and a “bigot” and they confirmed they had not. The grievance raised by the Complainant on 22 November 2021 was investigated with an outcome issued on 25 November 2021 stating that no disciplinary action was being taken arising out of the complaint. The Complainant was offered to an appeal to this decision, but none was received.

It was confirmed by Mr Boyle in his evidence that there were previous issues between the Complainant and RR and unless the parties came to him, he stated he could not mediate. It was when RR came with a “formal complaint” that he acted on it.  He said that he could not believe racism “was at my doorstep” and felt he had to deal with the situation. Mr Boyle added that he would have treated a complaint in the same manner if it had been the other way around.

Mr Boyle was asked under cross examination about his involvement in the initial interaction on 12 November 2021 when he suspended him and Mr Boyle’s subsequent involvement in the investigation meeting. Mr Boyle said he had taken advice from Mr McCarthy, his HR adviser, and felt “this was the correct procedure” and saw “no reason why I should not have been involved.” Mr Boyle also confirmed that he signed the letter dismissing the Complainant for gross misconduct. There were two separate individuals involved in the appeal, Mr Boyle’s sister and a third-party HR Advisor. Mr Boyle confirming, he decided and wrote the outcome letter from the appeal upholding the sanction of gross misconduct.

Mr Boyle accepted he was aware there were differences between the Complainant and the RR but stated “unless the parties come to me, I cannot mediate”.

Upon inquiry, Mr Boyle stated the allegation against the Complainant was “racial abuse towards another employee”.  Mr Boyle was asked why he decided to dismiss the Complainant to which he replied that he based his decision on the witness statements that he took on the day of the incident. Mr Boyle could not recall if the 3 statements were put to the Complainant at the hearing. Mr Boyle gave evidence that Mr McCarthy took the minutes of the meeting and confirmed Mr McCarthy was interacting at the hearing by directing the questions to the Complainant and lead the hearing.

Mr McCarthy gave evidence that he advised the Respondent at the outset of the incident and guided Mr Boyle through the procedure as well as sitting in on the disciplinary meeting on 25 November 2021. Mr McCarthy stated the Complainant “stone walled the particular incident” and in his “opinion he was deliberating avoided” the allegation. When asked why the meeting took over 1 hours 45 minutes, Mr McCarthy stated that he “choose to prolong the hearing” to give him an opportunity to apologise but the Complainant, “would not take the opportunity to admit” what he had done with “some sort of very watery attempt of an apology”. Mr McCarthy was of the view that had the Complainant apologised “that may have changed the end result”.

Under cross examination Mr McCarthy was asked why did the Complainant’s behaviour at the disciplinary meeting form part of the decision to dismiss him? It was Mr McCarthy’s evidence that he did look at the Complainant’s overall conduct at the meeting. Mr McCarthy denied asking the Complainant if he was a “racist”. Asked if the Complainant was made aware that he could be dismissed, Mr McCarthy confirmed that it was in the disciplinary policy.

The meeting notes were opened to Mr McCarthy with reference to the Complainants words “I wish to apologise to the Company, and all involve”. Asked why this was not considered to be a sufficient apology that would have changed the outcome of the disciplinary, Mr McCarthy replied that the Complainant did not take the opportunity to “clarify what comments”, “he did not apologies for the incident” and it was “completely unclear what he was apologising for”. When asked what he was looking for, Mr McCarthy replied, “if he held his hands up” and admitted what he had done and apologised for it. He continued; “It is very important that Mr Maunsell would want to look favourably to me when I was making a decision” about this job. He described the Complainant as “stonewalled my questions”.

In relation to the allegation which Mr McCarthy confirmed was “racial abuse” it was put to him that the 4 witness statements each had a different account of what was alleged to have been said. It was Mr McCarthy’s evidence that all witnesses were present and substantiated the racial abuse allegation.

Upon inquiry, Mr McCarthy confirmed he advised Mr Boyle that the Complainant’s grievance had to be investigated but he was not involved in it. He was however aware of its outcome.

Further questions were put to Mr McCarthy around the exact words said to have been used by the Complainant on the morning of the incident. Mr McCarthy was asked about the assertion that he repeatedly interrupted the Complainant which he denied. He advised that he took the Complainant’s statement and confirmed his handwriting on the minutes. Mr McCarthy said the meeting took 1 hour 15 minutes and the Complainant “would not offer anything only no comment”

Mr McCarthy confirmed he drafted the disciplinary invitation letter and Mr Boyle drafted the termination letter. Asked what the allegation was Mr McCarthy replied, “racist harassment and threatens of physical violence”. When asked why the allegation of throwing the soap at RR was not included in the letter, Mr McCarthy ‘s evidence was that it was included in the statements enclosed in the letter. Asked if the words the Complainant was being accused of were put to him at the disciplinary meeting, Mr McCarthy was given time to review the meetings and confirmed he could not find them in the minutes, but he was “fairly sure they were”.

Referring to the allegation, it was inquired of Mr McCarthy where the allegation is put to the Complainant at the disciplinary meeting, he confirmed that he could not see it in the handwritten minutes. He stated he oversaw the disciplinary process, did not “particularly” advise Mr Boyle of the need for separation of powers and his advice was fair and comprehensive in line with company policies with all fair procedures and natural justice being followed.

CA-00048294-002

A preliminary objection was raised by the Respondent in relation to the payment of wages claim as it related to a 2-year period from 2016 to 2019 which falls outside the jurisdiction of the Workplace Relations Commission when the complaint was not submitted until January 2021.

CA-00048294-001

The Unfair Dismissal Act 1977 places a clear burden of proof on the employer to establish that the dismissal of an employee from their employment must be justified.

“6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia, that:

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

Noonan J in Bank of Ireland -v- Reilly (2015) IEHC 241 outlined what is required of an employer:

“…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/DM.”

The suspension of an employee is a serious step and must be justified as again held by Noonan J in Bank of Ireland -v- Reilly (2015) IEHC 241:

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question.”

Kearns J. in Morgan v Provost and Fellows of Trinity College Dublin, [2003] 3 I.R. 157:

“Disciplinary procedures may also be found wanting if the person who is about to be suspended has not been fully informed as to the complaint against him and given an opportunity to respond to any proposed suspension.”

Having reviewed the Respondent’s policy there is a clear provision for suspending an employee to allow for an investigation to take place. However, in this case it is of concern that the Respondent called the Complainant to the office without prior notice as the nature of the meeting, without a representative present and most concerning, without putting an allegation to him as to what he was being accused of and being given an opportunity to respond to his employer’s unilateral decision.

In Re Haughey [1971] I.R. 217, the Supreme Court considered Article 40.3 of the Constitution and determined that in any proceedings during which an employee’s conduct is called into question, that person must be afforded a reasonable means of defending himself known collectively as the principles of natural justice.

“… in proceedings before any tribunal where a party to the proceedings is on risk of havinghis good name, or his person or property, or any of his personal rights jeopardized, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution the State, either by its enactments or through the courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.”

The person who is the subject of an allegation should be afforded, at a minimum, the opportunity to be:-

a. furnished with a copy of the evidence against him;

b. allowed to cross-examine the accuser or accusers;

c. allowed to give rebutting evidence; and

d. permitted to address the body concerned in that person’s own defence.

In addition to the rights above, an employee should also be offered the opportunity to be accompanied to investigation and disciplinary meetings.

These rights were further discussed in detail by Flood J in Fitzelle v New Ross Credit Union Ltd [1997] IEHC 137.

From the direct evidence of both Mr Boyle and the Complainant there was no allegation but to the Complainant at the meeting in Mr Boyle’s office on 12 November 2021. It was Mr Boyle’s evidence that he “purposely” did not put RR’s complaint to the Complainant at that meeting as he wanted to hear the Complainant’s version of events.

In the Complainant’s own words, he requested the statements to clarify what he had said. Suspending an employee without providing written notice of the allegations being made against him falls short of what is expected of a reasonable employer but seeking to entrap an employee by withholding the allegation and suspending him when his only response is to ask what his employer was referring to, is wholly unacceptable.

It was only after the Complainant himself wrote to the Respondent on 17 November 2021 seeking the statement from the alleged person, witness statements, his contact of employment and the disciplinary and grievance procedures was he furnished with same. This came after the Complainant was provided with the disciplinary investigation letter drafted by Mr McCarthy.

Addressing the allegations against the Complainant in this case, a year after the alleged incident in the canteen it remains entirely unclear what exactly the Complainant is being accused of. Mr Boyle’s own statement of his meeting with the parties on 12 November states he put the allegation of “verbal abuse” to the Complainant while in his office. There was no evidence as to whether this statement was provided to the Complainant during the course of the investigation.

All three witnesses before the WRC were asked at the hearing what exactly the allegation being investigated was; Mr Boyle’s evidence was “racial abuse towards another employee”.  Mr McCarty ‘s evidence was the allegation was of “racist harassment and threats of physical violence”, while the Complainant’s evidence was “mostly harassment was what I picked out from it” and “fighting”.

Having reviewed the disciplinary invitation letter, dated 17 November 2021 includes an extract from the Disciplinary Procedure stated in the past definite tense:

“You carried out the following:

(a)          Fighting, threats or acts of physical violence

(b)          Immoral or indecent conduct

(c)           Breaches of safety rules

(d)          Racial Harassment”

At the outset of the investigation meeting, it was Mr McCarthy’s evidence that he did put the allegation to the Complainant but after taking the time to review the notes he was unable to identify where it was noted stating he was “fairly sure they were” put to the Complainant. These are the same minutes that he himself gave evidence of taking and signed at the end of the hearing.

The same allegation that he “carried out the following”, allegations was repeated in the termination letter with the conclusion that the Complainant “racially abused a fellow employee” as being the stated reason for dismissal.

Nowhere in the evidence presented as to the exact words said to be used by the Complainant. The only evidence is a statement written by Mr Boyle, dated 12 November 2021, which notes various versions of the words the Complainant was alleged to have said. However, the parties who were said to have witnessed the incident in the canteen did not provide signed statements nor did they appear to give evidence therefore, their evidence cannot be accepted. While it is not the role of the WRC to re-investigate the matter, it is to decide whether the investigation was fair and sanction proportionate as held by Barron J. in Loftus and Healy v An Bord Telecom, Unreported, High Court, Barron J., February 13, 1987. Where the Respondent is relying on the defence that the employee was fairly dismissed due to his conduct, it is essential that the allegation for which he was dismissed be clear.

Of particular note is the absence of an investigation report. There is no reasoning or finding based on the evidence before Mr Boyle as to why he concludes the Complainant was guilty of all four allegations. At the hearing the Respondent gave no reference or evidence whatsoever around the allegations of “immoral or indecent conduct” or “breaches of safety rules”.

At all times an employee is entitled to know exactly the allegation(s) against him together with the evidence being relied upon from the outset of the disciplinary process which in this case began in Mr Boyle’s office on 12 November 2021. It was clear from Mr Boyle’s own notes that he had spoken to the individual who made the complaint and the witnesses before meeting with the Complainant. Where it the case that an employee is the one requesting the evidence from his employer, it not only demonstrates that the Respondent’s failure to adhere to fair procedures but puts the employee at a significant disadvantage in being able to answer the case against him. It is further noted that the objections around the witness statements were never addressed by the Respondent, nor were they put to the Complainant at the meeting according to Mr Boyle’s evidence. It is further noted that the witnesses were not made available to the Complainant at the disciplinary investigation meeting despite raising his objection to the statements at the beginning meeting on 22 November 2021.  These are fundamental breaches of fair procedures.

The principles of natural justice require the disciplinary investigation process together with the appeal of a decision to be carried objectively. An employee has the right to a fair and impartial determination of the issues being investigated as provided for in the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) as well as case law.

It was readily accepted by Mr Boyle, in his evidence, that he made the decision to suspend the Complainant on 12 November 2021, while he did not draft the disciplinary investigation letter of 17 November 2021, he did sign it and engaged in the disciplinary investigation meeting on 22 November 2021, there was no dispute that Mr Boyle signed the dismissal letter of 25 November 2021 as well as the appeal invite letter on 3 December 2021 and the outcome letter of 15 December 2021.

The invitation letter to the disciplinary meeting lacked any warning as to the seriousness of the allegations and the Complainant’s job may be at risk. This was put to Mr Boyle who accepted no such warning was contained in the letter. Mr Boyle also confirmed that there was no investigation report issued between the 22 November 2021 and the 25 November 2021.

Mr Boyle was asked directly when he had made up his decision to which he replied, his mind was set that this was serious misconduct in the meeting, and he did not consider any other sanction other than dismissal. Mr Boyle was clear in his evidence throughout the hearing.

It is unclear as to Mr McCarthy’s role in the disciplinary process. In the disciplinary meeting invite dated 17 November 2021 he is referred to as “Independent”, in his direct evidence he stated he “guided Mr Boyle through the process” and sat in the disciplinary meeting on 22 November 2021 and he was “part of the disciplinary hearing but that was it” and as the note taker yet he then stated in under cross examination that “It is very important that Mr Maunsell would want to look favourably to me when I was making a decision” . Mr McCarthy also gave evidence that had the Complainant apologised at the disciplinary investigation meeting “that may have changed the end result” and his conduct at the meeting did influence the decision yet he stated he was not involved in the decision to dismiss the Complainant. All in all, it appears that Mr McCarthy evidence around his role in the process is can only be described as confused.

There was evidence given around the appeal by the Complainant however, neither of the two individuals who conducted the appeal were present to give evidence. It is understood it is not disputed that the Complainant appealed the decision to dismiss him, and an appeal hearing was held. There was a suggestion put forward by the Complainant that the appeal was not impartial as it was heard by Mr Boyle’s sister. Mr Murphy’s evidence that while the appeal hearing did allow for him to contribute but described the appeal decision as being “done and dusted”. As outlined above, it was Mr Boyle’s decision to affirm the decision to dismiss the Complainant. 

In summary, there was no dispute that Mr Boyle was involved in each step of the disciplinary process which is further breach of fair procedures by the Respondent.

What is of grave concern is the disputed evidence around the manner in which the disciplinary investigation meeting on 22 March 2021 was conducted. Both parties agreed that the meeting lasted for approximately 1hour 45 mins and that the atmosphere was less than cordial as the meeting went on.

There was contradictory evidence from the Respondent with Mr Boyle describing Mr McCarthy as leading the hearing while Mr McCarthy’s initial evidence was, he simply sat in on the meeting to being note taker which then expanded to decision maker. It was Mr McCarthy evidence that the Complainant “deliberately avoided”, “stonewalled” and only responded with ‘no comment’” to the questions put to him.  As a result of this approach, it was Mr McCarthy’s evidence that he “chose to prolong the hearing” for the Complainant to take the opportunity to admit what he had done and apologise for his action. However, the prepared statement which the Complainant read out at the hearing, the Complainant’s own evidence and Mr McCarthy’s minutes of the meeting all note that he did offer an apology for his behaviour on that morning to the Company and all involved and accepted was wrong and that he did throw the soap at RR. There is no reference or note in the minutes of the meeting as to where the Complainant was alleged to have said “no comment” or avoided questions despite Mr McCarthy’s evidence.

The majority of the meeting, according to the minutes, was taken up with discussing (a) previous complaints the Complainant had with RR and the working conditions and (b) the grievance raised by the Complainant against RR. Surprisingly there was little to no discussion recorded around the reason the meeting was being held, i.e., the incident of 12 November 2021.

The discussion of the grievance in the minutes is directly contradictory to Mr McCarthy’s evidence that he was not involved in the grievance, yet he was the one who took the notes of the complaint. It is also noted Mr Boyle did exchange in correspondence with Mr McCarthy around the grievance in a document produced which was signed by 2 of the 3 witnesses 

It is noted that all parties signed the minutes at the end of the meeting, including the Complainant who confirmed it his evidence. However, it simply unbelievable, based on the evidence given by all 4 witnesses at the hearing, that the 8 pages of handwritten notes minutes were a full account of what happened at the meeting that lasted 1 hour 45 minutes.  The Complainant’s behaviour at the meeting was described as agitated with the Complainant himself describing the atmosphere as being “hot and heavy” yet there is no suggestion of this in the minutes.

There were serious allegations made by the Complainant and Mr Murphy that the Complainant was interrupted numerous times when making his statement, where it was felt, the Respondent did not want to listen to him and engaged in name calling. None of this was captured in the minutes and was denied by Mr McCarthy. However, on the balance of probabilities the evidence of Mr Murphy was preferred, who was not to benefit in any way from this case.  His evidence was clear and consistent.

It appears from the evidence that the meeting on 22 November 2021 can be only described as an interrogation by the Respondent. Prolonging a disciplinary meeting in an attempt to extract some sort of confession from an employee is no way to conduct a fair and impartial disciplinary. The conduct of the Respondent fell significantly short of what is expected of a reasonable employer. 

In summary, the dismissal of the Complainant was fundamentally flawed from the outset, the pre-determined sanction of dismissal was entirely disproportionate particularly considering the lack of any due consideration or investigation into the complaints he raised as against the other individual involved in the incident, not to mention the appalling treatment of the Complainant by the Respondent from the 12 November 2021. Consequently, I find the Complainant was unfairly dismissed by the Respondent.

In terms of redress the Complainant selected compensation, reinstatement, and re-engagement. Having regard for all the circumstances of this case, it would be unsustainable to compel the parties to continue working together. Therefore, compensation for his financial loss is the more suitable form of redress.

Section 7 of the Unfair Dismissal Act

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

The Complainant’s employment ceased on 15 December 2021, but he was paid up to 23 December 2021 as confirmed with the parties at the outset of the hearing.  It was his evidence that he took up employment at an unknown date at the end of February 2022. Therefore, his actual financial loss amounts to 9 weeks at an agreed weekly gross wage of €540 which equates to €4,860 which considers the significant breaches of fair procedures by the employer. Payments under social welfare an income tax legislation are to be disregarded as per Section 7 (2) A of the Unfair Dismissal (Amendment) Act 1993.

Section 7 also allows for the loss of right by the employee under the Redundancy Payment Act 1967-1973.  This is a separate and distinctive category of loss to actual and prospective loss as decided in Watt v Ryan Investment Ltd., ADJ-00039164. The Complainant had 5 years continuous service with the Respondent and therefore, would have a right to redundancy should the situation arise. However, as a direct consequence of the unfair dismissal, he has lost this security and having only obtained full time employment since February 2022 where if his new employer was faced with a downturn in business or restructuring, and the Complainant was made redundant he would have absolutely no entitlement to a statutory redundancy payment. The Complainant is, therefore, entitled to compensation for financial loss attributable to any loss or diminution of any entitlement to the Redundancy Payments Acts in the sum of €6,480.

CA-00048294-002

It was the Complainant’s evidence that he commenced work in 2016 and there was an agreement in place since 2008 that employees would work 42 hours but would only be paid for 40 hours. It was his evidence that he raised with Mr Boyle about a 39-hour week, and he was offered an additional €40.

Payment of Wages Act 1991, Section 6 (4) provides:-

“(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable”

This complaint relates to a period from 2016 to 2019 according to the Complainant’s submission. The WRC received the Complaint Form on 24 January 2022 and is therefore outside the 6-month time limited provided for in the Act. I have no jurisdiction in respect of this claim.

 CA-00048294-001

I find the Complainant was unfairly dismissed and award him compensation of €4,860 + €6,480

CA-00048294-002

I find this complaint not well founded.

Unfair dismissal – payment of wages – fair procedures – financial loss.