Complainant

Respondent

Parties

Paul  Dudgeon

An Post

Representatives

John J. Quinn & Co. LLP

Cathal McGreal BL instructed by An Post in house solicitor

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-00050094-001

29/04/2022

The Complainant commenced employment with the Respondent on 7 June 2005. He was initially employed as a part-time mail operator and in 2007 appointed as an auxiliary postal sorter.

The Complainant had various interactions with the Respondent’s HR department between 2015 and April 2020 none of which are relevant to this complaint.

The Complainant had a dispute with his former partner in January 2020. Arising from same, his former partner made a complaint of theft and assault to the Gardai.  A criminal case commenced before the District Court on 7 October 2020.  On 16 December 2020 the Complainant was convicted in the District Court of theft and assault offences. He appealed to the Circuit Court and the case was dealt with by the Circuit Court over a period 15 April 2021 to July 2021.   Ultimately the charge in respect of assault was dealt with under the Probation Act following the payment of a total of €6,000 by the Complainant and the appeal in respect of theft was allowed.

The Respondent was made aware of several social media posts which claimed to refer to the Complainant.

Between 12 October 2020 and 20 November 2020 two investigation meetings took place between the Complainant and the Investigation Branch of the Respondent.  On the 23 November 2020 the Complainant was suspended from employment on pay.  Following a disciplinary process which involved an initial decision and appeal, the Complainant was dismissed from his employment effective from 11 February 2022.

At the date of the WRC hearings over 15 months later, the Complainant had not sourced alternative work. He explained that he was on an CE scheme for one year and had applied for circa 170 jobs, the outcome of which was the offer of some part-time or seasonal work which were not financially viable.  He was not successful in any role that required Garda vetting.  He explained also that he had childminding requirements and he had four children and he had to put them first.

As the burden of proof was on the Respondent, its witnesses gave evidence first.

The initial decision maker (HR manager, Mails and Parcels) and appeal decision maker (HR Director An Post Commerce) gave evidence on affirmation. Both were cross-examined by the Complainant’s Representative.

The Respondents case was that all employers whatever the business or activity they engage in, needs to have trust and confidence in their employees and when disciplinary issues arise, they must expect their employees to answer any allegation in a transparent, consistent, and straightforward manner.

Following the social media posts coming to the Respondent’s attention, a preliminary investigation by the Investigation Branch established that there were criminal proceedings before the District Court for assault and theft by the Complainant against his then partner.

The Complainant was suspended with pay on the 23 November 2020 for the purposes of further investigation and possibly disciplinary action. A disciplinary process letter issued on the 28 January 2021 wherein the Complainant was made fully aware of the allegations before him. He attended a hearing before the decision to dismiss was made. 

The first instance decision to dismiss the Complainant was by letter 9 September 2021.  The letter set out the following grounds for the decision: -

1.           There were serious shortcomings in relation to the Complainant's behaviour that impacted on his role within the Respondent.

2.           The question of his honesty and integrity was a serious concern for the Respondent is this, in line with his contract, was required to be without doubt.

3.           The Complainant had brought the Respondent into disrepute, which was a further breach of his contract.

4.           The Respondent could no longer retain trust and confidence in the Complainant going forward.

This decision to dismiss was appealed by the Complainant.  An in-person hearing was held in November 2021.  The Complainant was represented by a National Officer of his Union.  The outcome of the appeal issued on 1 February 2022 and confirmed the original decision to dismiss.  This was effective from 11 February 2022. The outcome letter set out:

"You have in my view, attempted to downplay the issues involving you that were before the courts, including suggesting that you now have a 'clean record' as advised by your solicitor and barrister. You also have been at worst invasive, and at best unclear, when asked to explain where matters were at. Notwithstanding this, you did accept that you paid a total of €6000 to the victim and that the assault charge was dealt with by way of the Probation Act.

Given the confusing account of these matters including in relation to the conviction, I agree that there are serious concerns in relation to your honesty and integrity both of which values are very important to An Post, given the value placed on such issues by our customers. I also agree that you were engaged in matters which brought An Post into disrepute may have caused some reputational damage."

The Respondents case was that the dismissal was not simply about 'out of work conduct'.  It submitted it concerned the manner of the Complainant's engagement with the Respondent regarding his 'out of work conduct'.  The Respondents case was throughout the internal process, the Complainant gave various differing accounts of his conduct and the criminal proceedings.  In August 2021 the Complainant's representative (at the time) asserted on his behalf:

-The theft matter was simply 'withdrawn'

-his lawyers had 'assured him' that the assault matter would be 'overturned'.

The initial decision maker gave evidence that that he considered the Complainant's actions at the serious end of the scale. He also stated he had considered the option to give other sanctions.  This was not set out in the decision letter of 9 September 2021.

The appeal decision maker gave evidence that she couldn't trust that the Complainant was telling the truth in relation to any of the matters. She said she didn't have any confidence in what he was telling her and that he downplayed his role in events. This went to his honesty and integrity and resulted in reputational damage in her view to the Respondent. 

The witness also stated that she didn't consider any other alternatives to dismissal.

The Respondent submitted that what had happened in the Courts was that the Complainant offered to withdraw his appeal to the assault in return for an undertaking by the Prosecution that it would not contest the appeal in the theft charge. It stated that this was very different to the representation above. It submitted that the assault charge was never overturned.

The Respondent submitted that the decisions (initial and on appeal) were entirely reasonable and substantiated. It submitted that the Respondent acted well within the band of reasonable responses open to the Respondent in the circumstances. The dismissal was focused on the way the Complainant met the allegations internally that he had been the subject of criminal charges. It submitted that the fact he was convicted, and the subject of the Probation Act was only a component part of the dismissal. The Respondent considered the inconsistent accounts by the Complainant of what took place and his evasive response as a very serious concern.

The Respondent relied on the case of Crowe -v- An Post [2016] ELR 23 where the Employment Appeals Tribunal set out the test for dismissal of employees following criminal conviction.

It submitted that the reasons articulated by the first decision maker and appeal decision maker were fully consistent with an entirely supported by the reasoning in Crowe. The disciplinary allegations were substantiated insofar as they lead to a breach of trust and damage to the relationship between the employer and the employee. The Complainant was not fully cooperative as he claimed but made matters difficult and unclear when he should have made matters fully clear and transparent. 

The Complainant's case was that he had interpersonal difficulties with his partner in January 2020. He submitted that malicious Facebook posts were posted online and he stated that they were entirely false.

The Complainant gave evidence of how he was absent from the workplace for three years between 2017 and 2020. This was for reasons unrelated to the case before me.

He explained what happened on 14 January 2020.  He said that both he and his former partner were both very drunk that night. He confirmed that he pushed her, and she fell to the ground. He said if he had not been drunk, he wouldn't have pushed her.  He said that he regretted the incident, and he was sorry that it happened.  He said his actions were not premeditated, but that he was a victim of the courts system.

The Complainant submitted that he was unlawfully suspended in November 2020. This caused him enormous stress which required treatment from his GP. He was prescribed antidepressants and referred to counselling. He submitted that he was suffering with anxiety and depression. He explained that he was not afforded any assistance by the Respondent. 

The Complainant relied on the Respondents correspondence 4 March 2021 stating that “the outcome of the criminal proceedings would have no bearing on the Respondent's decision in relation to the disciplinary complaint”. 

The Complainant explained that he consented to a three-year protection order being made against him and said he did this to "move on with his life".

He agreed that he was convicted in the District Court of theft and assault offences in relation to his former partner. He submitted that he did not get a fair hearing and appealed the matter to the Circuit Court. He submitted that the Circuit Court quashed the theft conviction and reduced the assault conviction to a probation order under section 1 (1) of the Probation Act. He said that he had to abstain from drinking alcohol for six months and was required to have no further contact with his prior partner.

He submitted that he had no conviction of theft and no previous convictions and there was no reputational damage to the Respondent.  In direct evidence he said that “he paid the money and moved on with his life”. He said "he believed he had a clean record". He said that this Court outcome was not enough to "fire someone".

Under cross examination he confirmed that he wouldn't have done anything differently. He said that he told the truth. When it was pointed out to him that he pleaded guilty in the Circuit Court to the assault charge for the Probation Act to be applied, he said he was not aware of that, and he did not remember that.  He said he didn't believe that he brought Respondent into disrepute.

The Complainant referred to the initial oral investigation hearing in March 2021 during which his union representative identified that the Facebook post was anonymous and was based on hearsay. He submitted that the criminal complaints were a private matter and had no bearing on his work. He pointed out that the disciplinary investigation commenced in circumstances where the Complainant had not done anything wrong within the workplace. The issue at hand arose because of a relationship breakdown and did not impact on the Respondent in any way. He referred to a difficult marriage breakdown and his medical condition of anxiety and depression. 

He also submitted that the appeal decision maker introduced new reasons to uphold the original decision to dismiss him. The decision maker stated that the Complainant had brought the company into disrepute, but she did not say how he did so. She went on to state that he "may" have caused the Respondent reputational damage.

The Complainant submitted that what took place in the court setting was none of the Respondents business. He submitted was a private matter unrelated to work.

In evidence he said that he did not downplay his role in the matter, he denied he was evasive or unclear and he said he was not dishonest.

He submitted that the Respondent had no evidence that the criminal offence had any impact on its business. The Respondent did not consider sanctions other than dismissal and it should have considered alternative sanctions considering the Complainant's otherwise clean employment record over 17 years’ service.

The Complainant also relied on the Crowe -v- An Post case among other cases. He submitted that it was well established that an employee should not be dismissed or disciplined only because he or she has been charged with or convicted of a criminal offence. He submitted that the question to be asked was whether the employees conduct or conviction merited action because of its employment implications. He submitted that to be dismissed there must be some connection between the offence committed and the work the Complainant did. He submitted that following the Circuit Court appeal, he had no conviction for theft. He submitted the assault charge had no bearing on his work.  

As dismissal was not in dispute the burden of proof was on the Respondent to show that the dismissal was not unfair.  Section 6(6) Unfair Dismissal Act 1977.

Section 6(1) of the Unfair Dismissal Act 1977 provides that: -

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 6(4) of the Act in relevant part provides:

(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:

(b) the conduct of the employee,

Section 6(7) of the Act in relevant part provides that: -

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, 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…

The basic facts of this matter are not in dispute.  The employer held an investigation, a disciplinary process and an appeal hearing over a circa 15-month period between October 2020 to February 2022. The decision to dismiss the Complainant was taken following the disciplinary process and that decision was upheld on appeal.

While the steps in the investigation and hearing were not carried out in what would be considered normal HR practice, with the initial decision maker having never met the Complainant and instead relying on a file provided by internal investigators, in the context of the unionised employment and agreed procedures, I find that the process was fair.

In its submission and during the hearing, the Respondent stressed that Complainant’s dismissal did not relate to his criminal case before the Courts. Its case was that the dismissal came about because of the Complainant's engagement with the Respondent regarding his out of work conduct and the way he gave inconsistent accounts of what took place in the Courts. 

While the Unfair Dismissals Act 1977 does not permit a high degree of intrusion into managerial decision making, Bank of Ireland v Reilly [2015] E.L.R. 229 set out that the question is “whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

Having considered the evidence presented to me and the letter of the 9 September 2021, I find the reasons given for the Complainant's dismissal in September 2021 did relate to his out of work conduct. The decision maker referred to "serious shortcomings in your behaviour that impact on your role" with no examples given. After outlining the District Court and Circuit Court outcomes the decision maker stated that the "question of your honesty and integrity is therefore a serious concern for the company and this in line with your contract is required to be beyond doubt".  The decision maker further set out that the Complainant had "brought the company into disrepute, which represents a further breach of your contract of employment" and set out section 2.12 of the contract.  Finally, the decision maker stated that "the company can no longer retain trust and confidence in you going forward".  In that letter there is no reference to inconsistent accounts by the Complainant of what took place in the court system.

The appeal decision maker’s letter 1 February 2022, set out that she was "satisfied that the decision taken to dismiss you from your employment with An Post is the correct one". I accept that the decision maker referred to “confusing accounts” and to the Complainant being "at worst invasive and at best unclear", the decision went on to refer to the Complainant accepting that he "paid a total of €6000 to the victim that the assault charge was dealt with by way of the Probation Act". Read as a whole, the decision clearly related to the out of work conduct and the criminal prosecution.

Both the Complainant and Respondent made reference to the case of Crowe (claimant) v An Post (respondent): UD1153/2014.  As set out in Ryan, Redmond on Dismissal Law, 3rd edn (Dublin, Bloomsbury, 2017) in that case, the Employment Appeals Tribunal gave a synopsis of how a decision maker should approach an unfair dismissal claim arising from criminal conduct by an employee outside of the workplace. It set out

There is considerable uncertainty as to whether an employee's conviction for a crime committed outside the workplace would entitle the employer to dismiss the employee. In such circumstances the employer would argue that the bond of trust had broken down. The matter is not that straightforward. The basic principle is that usually an employer's jurisdiction over misconduct of the employee ends at the company gate. A dismissal for misconduct outside the workplace can only be justified where there is sufficient connection between the crime committed and the employee's work, in such a way that would render the employee unsuitable or capable of damaging the employer's reputation. The guiding principle in cases involving misconduct outside the workplace is that the employer must be able to show a connection between the misconduct and the company's operational requirements.

As a general rule the employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some legitimate interest in the conduct of the employee. An interest would normally exist where there is some nexus between the employee's conduct and the employer's business. The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to business, employee relations or affects the reputation of the company. The test is: has the out-of-work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer's business? If it has then the employer has the right to institute disciplinary proceedings. Whether this gives the employer the right to impose sanctions, up to and including dismissal, will depend on the particular circumstances of each case. No two cases are the same and each case must be decided on its own particular merits. Because of this it is extremely difficult to have consistency of approach.

In another out-of- work conduct case, the EAT in Browne V the Mountview/Blakestown/Hartstown/ Community drugs Team (UD1447/2014) noted:

-          No complaint was made to relevant personnel within the Respondent company

-          The claimant’s record was generally misconduct free before the incident

-          No apparent damage or harm was sustained by the Respondent or to the quality of its services

In that case the EAT found the dismissal of the Complainant was disproportionate and unfair.

In this case having considered the entire disciplinary process carried out and while noting there was a referral of a Facebook post to the Respondent, I do not find that the Respondent’s decision to institute disciplinary proceedings and ultimate dismissal of the Complainant from his employment met the test of whether the out-of- work conduct of the employee impacted adversely or was capable of impacting adversely on the Respondents business.

The Complainant’s evidence of the incident that took place on the 14 January 2020 was that it related to a drunken interaction by the Complainant with his then partner for which he was prosecuted in the courts system.  The Courts system made its decision based on the evidence of the Complainant and his former partner.  In reaching my decision in this case, I am in no way condoning any acts of violence on another person no matter what the context.  However, in this case no nexus was provided to me to link the Complainant's conduct on the 14 January 2020 to the Respondents business to justify his dismissal.

Also, considering the Complainant's service of 14 years, the fact that neither decision maker considered alternative sanctions in their letters of dismissal was not reasonable.  Ultimately, I find that the decision to dismiss was not within the band of reasonable responses.

In such circumstances I find that the Complainant was dismissed by the Respondent in breach of the Unfair Dismissal Act.

In relation to redress, Section 7(1) of the Act, empowers me to order re-instatement, re-engagement, or a payment of compensation to a successful Complainant. In this case, I find that compensation is the most appropriate remedy considering the facts of the case and the passage of time since the Complainant was suspended on pay in November 2020.  In calculating compensation, I am required to consider the Complainant’s attempts to mitigate his losses following his dismissal. Having regard to the totality of the evidence presented, I do not accept that the Complainant did enough to mitigate his loss and find that he did not act reasonably in all the circumstances (Section 7 (2) (c)). Also, not all the explanations as to his inability to find work such as the requirement for Garda vetting were linked to his dismissal pursuant to Section 7 (2) (b). As was set out by the Labour Court in Smith v Leddy UDD 74/2019 I expected to see “evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”.   I was not provided sufficient evidence of this.

Having regard to the totality of the evidence presented, the evidence regarding mitigation and the Complainant’s conduct, I award the Complainant the sum of €5,000.00 which is in the region of 8 weeks net pay.  In this time of near 100% employment, the Complainant should have been able to acquire some replacement work in that period. 

This complaint is well founded, I award the Complainant €5,000.00.

Unfair dismissal. Outside of work conduct.

Crowe (claimant) v An Post (respondent): UD1153/2014

Browne V the Mountview/Blakestown/Hartstown/ Community drugs Team (UD1447/2014)