Complainant

Respondent

Anonymised Parties

A Verger

A place of worship/heritage site

Representatives

Shonagh Byrne SIPTU

Gerard Dunne McGrath McGrane 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-00035956-001

30/04/2020

The complainant was employed 1st June 2013 to 18th December 2019 and was employed in a variety of roles during that time.  At the time of termination of his employment he was employed as a Verger.  He submitted a complaint to the Workplace Relations Commission contending that he was unfairly dismissed, that the procedures followed were unfair and not in line with the principles of natural justice and that the sanction of dismissal was severe and disproportionate.

The respondent is a place of worship and a heritage site.  The respondent submitted that the complainant’s dismissal was both procedurally and substantively fair.  Without prejudice to the foregoing, the respondent submitted that should the Adjudication officer find that the dismissal was unfair, (which the respondent denied) that the complainant’s failure to sufficiently mitigate his loss and his contribution to his dismissal was such that any potential compensation award should be reduced to nil. 

Summary of information & Events relevant to the termination of employment

The respondent submitted that the following sequence of events occurred in relation to the termination of employment of the complainant:

·        The complainant commenced employment with the respondent circa 1st October 2013 and was engaged in various roles.  At the time of his dismissal on 17th December 2019 he was engaged as a Verger on a permanent full-time contract.

·        Prior to his dismissal, the complainant was on a final written warning. He was dismissed for gross misconduct and misconduct, having attended work 45 minutes late, failing to report his lateness pursuant to the respondents absentee reporting procedure, and attending under the influence of alcohol within the meaning of the respondent’s employee handbook.

·        Prior to his dismissal the complainant had been issued with a number of disciplinary sanctions.  The complainant had been absent on sick leave for a protracted period during 2018. On or around 26th October 2018, a copy of the new employee handbook was provided to the complainant.  He had previously been provided with a copy of the earlier handbook on or around 9th January 2014. The handbook contained, among other information, the grievance and disciplinary policiesm the absence reporting procedure and the intoxication policy.

·        On or around 27th November 2018, a chck in meeting was sought with the complainant after he was found asleep at work.  The complainant attended an occupational health doctor who confirmed his fitness to carry out his full set of duties circa January 2019.  Despite this, the complainant was permitted to restrict his duties to cleaning, at his own request.

·        On or around 7th January 2019, a formal complaint was received by the respondent with regard to the complainant.  The complaint alleged that the complainant had failed to attend work, had arrived at work under the influence of alcohol, or suffering from the after effects of alcohol and had made inappropriate comments/jokes.  The Complainant was suspended with pay pending investigation of the complaint on or around 9th January 2019.  The investigation into the matter was commenced and concluded on or around 15th February 2019 and the complainant returned to work on 21st February 2019.  The respondent submitted that it exercised considerable forbearance on this occasion as, despite the complainants being made out, it did not impose a disciplinary sanction at tat time.  The complainant sought counselling following receipt of the complaint and a meeting was held with the complainant on 21st March 2019 to discuss the outcome of the investigation. At that meeting the complainant was advised of the new management structure, the importance of following procedures and the matters raised in the complainant of January 2019 were also discussed.   The complainant was asked, subject to medical approval which was forthcoming, and agreed to take his medication at night to avoid drowsiness at work.

·        The complainant arrived late for work on 28th February 2019, and again on 2nd March 2019 and in addition, failed to follow the respondent’s absence reporting policy, thereby creating operational difficulties for the respondent.  The complainant was invited to a disciplinary meeting regarding the above matter on 15th March 2019, the outcome of which was the issuing of a first written warning.

·        On 24th April 2019, a further incident took place in which the complainant spent excessive periods of time, including one period of around 1.5 hours in the recreation/break room of the Respondent’s premises while he was supposed to be on duty. The complainant was invited to a disciplinary meeting by letter of 29th April 2020 and the disciplinary hearing took place on 1st May 2020. The outcome of this meeting was to issue the complainant with a final written warning.

·        Despite being on a final written warning there were at least 2 further incidents of poor conduct on the part of the complainant which took place between May 2019 and the time of the complainant’s dismissal – firstly, the complainant failed to ensure that there were 2 Vergers on duty on 19th August 2019 and secondly, he attended work on 20th, 21st and 22nd August without wearing the proper uniform.  The respondent submitted that once again, it displayed considerable forbearance in dealing with these issues informally, despite there being a final written warning in place.

·        On the 29th august the complainant was due to commence work at 9.30 am.  Morning prayer was due to commence at 10 am, in which the complainant was required to participate as Verger. The complainant did not arrive at work until circa 10.20 am, at which point morning prayer had concluded. The complainant again failed to follow the respondents absentee reporting procedure.  The complainant did not dispute that he was late for work, nor did he dispute that he failed to follow the reporting procedure.

·        On the same day, the complainants appearance was noted to be somewhat dishevelled, and he was noted to be acting in a somewhat unusual manner. Two members of staff, RB and MG noticed a strong smell of alcohol from the complainant. RB called the complainant aside to ask him if he had consumed alcohol.  The complainant replied that he had been out the night before and if there was an odour of alcohol, that was the reason for it. Upon hearing this, and in accordance with the respondents intoxication policy, the complainant was sent home. The respondents intoxication policy states that “if there is evidence of the presence of an intoxicant or intoxication then the employee in question is deemed unfit for work.” RB followed up the mornings events with 2 eamils to the complainant.

·        The complainant had a period of annual leave booked for the Friday following this incident therefore the matter was not actioned until the complainant’s return. At the conclusion of the annual leave, given the seriousness of the incident in question, the complainant was suspended from his employment pending investigation and this was confirmed to him in writing by letter of 9th September 2019.

·        In the context that the complainant was on a final written warning and given the serious nature of the incident, the respondent appointed an independent external third party to investigate the allegations against the complainant. During the investigation all relevant witnesses were interviewed, and the complainant was given an opportunity to comment on their interviews, as well as pose questions to the various witnesses in order to test their evidence.

·        The investigation upheld both allegations against the complainant and attention was drawn to the rationale for the findings contained at the end of the report.

·        Following the investigation, the complainant was invited to a disciplinary hearing by letter of 10th December 2019, with the hearing taking place on 16th December 2019.

·        At the disciplinary hearing the complainant was given a further opportunity to outline what had occurred on 29th August.  The meeting was adjourned to the following day to consider matters. Upon resumption, the complainant was informed of the outcome, which was that he was to be dismissed. The decision was notified to him in writing.

·        The complainant was provided with a right of appeal, which he exercised by email of 20th December 2020. The appeal was heard on 21st January 2020 and was heard by SR who had no involvement in the investigation or previous disciplinary process. The appeal was unsuccessful on the basis that the complainant had not provided “sufficient grounds nor new information or sufficient mitigating evidence which would allow” the sanction to be overturned.

The respondent submitted copies of all correspondence, minutes and the investigation pack appended to their submission.

The Law

The respondent pointed to the provision of Section 6(1) of the Act which states that “ subject to the provision of this section, the dismissal of an employee shall be deemed for the purpose of this act, to be an unfair dismissal, unless having regard to tall the circumstances, there was substantial grounds justifying the dismissal.”

In addition the respondent pointed to Section 6(4)(a) which states “6(4) without prejudice to the generality of subsection (1) 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”

The respondent submitted that the decision to dismiss the complainant was entirely fair in the circumstances., that the complainant’s conduct up to that point had been unacceptable, that he had been issued with a number of warnings prior to his dismissal, that his dismissal arose out of a repeat of previous unacceptable behaviour, namely that of arriving late for work, failing to notify the respondent of his late arrival, as well as arriving for work under the influence of alcohol. 

The respondent drew attention to its’ intoxication policy which states that “Employees may not attend work under the influence or while suffering the after effects of alcohol consumption.  Employees with side effects from alcohol or drug consumption will be considered unfit for work and failing to adhere to the organisations Alcohol and Drugs Policy.  As a result, the employee concerned may be subject to disciplinary action up to, and including dismissal.”

The respondent submitted that the complainants unsatisfactory conduct was twofold:

(i)               His lateness and his failure to report his lateness in accordance with the respondents absenteeism reporting policy

(ii)              The complainant’s breach of the respondent’s intoxication policy.

In relation to (i) above the respondent submitted that this issue in and of itself was sufficient misconduct to progress the complainants final written warning to a dismissal following the conclusion of the disciplinary process.  In relation to (ii) the respondent submitted that the complainants conduct in this instance was gross misconduct and therefore capable of attracting a dismissal following the relevant disciplinary process.

The respondent submitted that in the above circumstances there were two operative reasons for the dismissal, either of which alone was capable of attracting the sanction of dismissal in its own right. The respondent further submitted that it engaged in a fair and transparent process of investigation and subsequently a fair disciplinary procedure. The respondent set out the test applicable to the fairness or otherwise of a dismissal as per Hennessy v Read & Write Shop Ltd.(UD 192/1978) where it was stated that “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to

1.      The nature and extent of the enquiry carried out by the respondent prior to the decision ro dismiss the claimant and

2.      The conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed”

The respondent submitted that it satisfied the requirements of the above test in all the circumstances.

Procedural Fairness

The respondent drew attention to the provisions of the Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000, S.I. 146/2000 which set out the following principles and guidelines with regard to what is required in relation to a fair investigation/disciplinary process as follows:

“the procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

·        That employee grievances are fairly examined and processed;

·        That details of any allegations or complaints are put to the employee concerned;

·        That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·        That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

·        That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.”

The respondent also drew attention to the provision in the Code which states that

“These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given, or that the employee concerned be allowed to confront or question witnesses.”

With regard to representation the respondent drew attention to the provision set out in the Code as follows:

“For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise.”

In its submission the respondent cited a number of cases where the attention of the adjudicating officer/body focused attention on procedural fairness.  In accordance with those findings the respondent submitted that it had fully complied with all requirements relating to the setting out of the allegations against the complainant, that it had afforded the complainant a fair and transparent investigation and disciplinary procedure and that it took the extra step of outsourcing the investigation to an independent external third party to ensure objective fairness and to ensure that the complainants right to natural justice and fair procedures were protected at all times.

The respondent submitted that the complainant had not at any point identified any aspect of the investigation and/or the disciplinary process which was in any way lacking or defective.  The respondent further submitted that the complainant was unable to do so due to the care and attention afforded by the respondent in ensuring that the process invoked was entirely fair.

In their submission, the respondent pointed out that the complainant was given the opportunity to provide written responses to the various witness statements, was provided with the opportunity to  pose specific questions to the various witnesses, in effect he was given the right to cross examination by correspondence.

The respondent submitted that the fairness of the procedure was evidenced by the fact that the complainant was at all times informed of the allegations made against him in writing, was at all times given adequate time to prepare for scheduled investigation or disciplinary meetings, was at all times permitted to be accompanied to any such meetings, and was provided with ample opportunities to challenge evidence and to put forward his version of eventsand any mitigation he considered appropriate.

The respondent further submitted, without prejudice to the foregoing, that if there were procedural defects present, (which it denied) those defects were such that they would not render the process or the outcome of the process flawed to such an extent that it would invalidate the outcome reached by the investigation team and/or the respondent.  The respondent relied on the decision in the case of Atkinson v Cope Foundation (UD483/2015) in support of its’ position and outlined that the complainant made admissions with regard to his conduct, which, along with the other evidence available with regard to his conduct, were sufficient to allow the decision makers to view his conduct as gross misconduct, regardless of any perceived procedural unfairness, which was denied on the part of the respondent.

The respondent outlined its view that if it is held that there were procedural defects in the investigation and/or disciplinary process of the respondent, that on balance the dismissal was nevertheless fair.

Substantive Fairness

The respondent submitted that as a result of the actions of the complainant, and having a thorough and robust investigation and disciplinary process, as well as an objectively fair appeals procedure, the respondent concluded that the actions of the complainant amounted to a further occurrence of misconduct with regard to the lateness and failure to report same in accordance with the absenteeism policy, and gross misconduct with regard to the aftereffects of alcohol consumption, therefore bringing the conduct, in both instances within the range of dismissal. The respondent submitted it was therefore entitled to dismiss the complainant and to uphold that dismissal on appeal.

The respondent further submitted that the sanction of dismissal was within the reasonable range of sanctions open to the respondent in all the circumstances.  The respondent submitted that it is not for the Adjudication Officer to substitute what they believe would be the appropriate sanction, if the sanction is within the reasonable range of sanctions open to the respondent in all the circumstances.  The respondent cited the decision in the case of Governor of Bank of Ireland v. Reilly [2015] EZR 229 and a number of other decisions in support of this position.

In conclusion the respondent submitted that the complainant was fully aware that he was on a final written warning, he was fully aware of the respondent’s absenteeism policy on intoxication.   In such circumstances the respondent submitted, the sanction imposed did fall within the band of reasonableness, it was a sanction validly open to the respondent and is fair on the substantive facts of the cases, as well as procedurally fair.  The respondent further submitted that in such circumstances the complainant’s complaint was without merit and so must fail.

Losses

The respondent submitted that, while it denied that the complainant was unfairly dismissed, should the Adjudication officer so find the respondent requested that any award be reduced proportionately based on the absence of evidence that the complainant had spent time seeking to mitigate his loss.  The respondent cited a number of decisions in this regard which highlighted the requirement on any complainant to make on-going efforts to mitigate their loss and to demonstrate those efforts.

Representations at hearing:

The respondent representative outlined the sequence of events that led to the complainant receiving the written warning and final written warning prior to the incident of 29th august 2019.  He outlined the events of 29th august, the appointment of an external investigator and the findings of the investigation process which upheld 2 allegations against the complainant, namely that

(i)               The complainant “arrived late for work by arriving at approximately 10.15 for a shift due to start at 9.30 and

(ii)              The complainant was suffering from the after-effects of alcohol consumption.

He confirmed that the complainant was advised that he could bring a colleague to support him through the process and the complainant did not raise any concerns in this regard.  He advised that the complainant was not refused a specific representative during the investigation process.

The respondent representative advised that the complainant had not indicated that SIPTU would be in attendance at the appeal hearing but that when the SIPTU official presented on the day there was no issue with her attendance.  He confirmed that at appeal the complainant had no new information to put to the manager hearing the appeal and he confirmed that while SIPTU sought to make representations this was not allowed.  He confirmed that the meeting was adjourned to allow time for consideration of the facts and that ultimately the complainants appeal was not upheld.

In response to the complainants submission the respondent confirmed that the complainant had been offered informal counselling at earlier stages in the procedure and that it wasn’t necessary to revisit that stage of the process, particularly given the severity of the issue. The respondent also confirmed that there was no requirement to refer the complainant to Occupational Health.  The respondent further confirmed that the complainant was at all times advised of his right to representation throughout the process and that there had been no exclusion of the trade union.  Lastly the respondent confirmed that the did consider the range of sanctions open to the employer but given that the complainant was already on a final written warning and given the seriousness of the findings against him the decision was that the appropriate sanction in allthose circumstances was dismissal.

In response to the complainants position that he wasn’t allowed trade union representation and that he was under extreme pressure at the appeal hearing as a result, the respondent advised that nothing new was put forward by the complainant and that any SIPTU representations “would have been peripheral to SR” (the manager hearing the appeal.

In conclusion, the respondent representative stated that the finding that the complainant was late for work was not in dispute, that his own evidence at investigation had confirmed this as a fact.  In relation to the finding that there was a detectable odour of alcohol from the complainant, his own evidence pointed to him having been drinking the evening before and he presented as confused.  He confirmed that he had consumed alcohol, followed by taking prescription medication left him groggy and late for work.  This led the manager to view him as unfit for work in accordance with the respondent intoxication policy.  The respondent also drew attention to the letter to the complainant of 7th October where he was advised of his right to representation of a colleague or third party.  At the subsequent meeting it was noted that he had attended alone and the time was taken to verify with him that in those circumstances he was “okay to proceed”.  The respondent further advised that during the meeting as the complainant became confused a break was again taken and it was put to the complainant again if he wished to adjourn the meeting to seek representation and again he confirmed his willingness to proceed unrepresented.

Witness Evidence – Ms. C, HR Manager:

Ms. C confirmed that she was the first HR Manager working with the respondent.  She confirmed that there had been a number of incidents where the complainant had not attended and not maded contact with the respondent manager and she cited examples of such incidents. 

Ms. C advised that staff had raised concern in relation to the complainant and that there had been a “check-in” meeting to discuss his wellbeing.  She confirmed that a formal complaint ws received in January 2019 but that it was felt that it should not warrant disciplinary action on this occasion and instead the complainant had been referred to Occupational Health. 

She advised that a welfare meeting had taken place in March 2019 and that at that meeting the respondent had taken the opportunity to re-iterate the new management structure and to remind the complainant of the need to comply with the policies and procedures.  She described further late attendances and that ultimately this resulted in a written warning being issued.  She confirmed that the complainant did not appeal of that sanction.

She confirmed that further incidents led to the complainant being placed on a final written warning  on 24th April 2019 and that this was the status of the complainant at the time of the incident which gave rise to the investigation and ultimately the dismissal of the complainant.

Ms. C confirmed that the external investigator had been appointed by the respondent and that her conclusions upheld the allegations against the complainant.  She further confirmed that at the disciplinary meeting the complainant did not dispute his lateness and he explained that the odour of alcohol was from the night before.

Cross examination of Ms. C by the Complainant Representative

The complainant representative asked Ms. C if it was felt that there were other issues in the background and was that why an email had issued to staff regarding the EAP.  Ms. C confirmed that it was evident that “people were aware of what was going on .  she stated that there had been lots of informal chats with the complainant and lots of “tips on the shoulder.”

The complainant representative asked why the complainant wasn’t offered informal counselling under the disciplinary policy.  Ms. C confirmed that she was aware that certain events were stressful and that the complainant was offered light duties for a longer period, but she said that the conversation was not documented.  She confirmed that there were lots of informal discussions with the complainant.

Witness Evidence – Ms. BT (of BS – Independent Investigator)

Ms. T confirmed that she had been commissioned to conduct the investigation into the allegations against the complainant.  She confirmed that she had no conflict of interest in this matter.

Ms. T outlined her process for inviting the complainant to engage in the investigation process and confirmed that she had provided him with terms of reference and confirmed to me that she had notified him in advance that he would have an opportunity at the investigation meeting to present any evidence he deemed relevant, together with any supporting documentation.  She also confirmed that she had advised him of his right to be supported at the meeting by a colleague or other third party. Furthermore, she confirmed that she provided the complainant with the relevant company policy and other initial documents and she advised him of the potential serious implications of the process.

Ms. T outlined the investigation process including the fact that she had provided the complainant with details of all evidence gathered and gave him an opportunity to respond to that evidence and to put forward any questions and /or challenges he wished to that evidence.  She confirmed that he did not do so.

The complainant submitted that he commenced employment with the respondent in June 2013, that he was employed as a Verger and that his rate of pay was €2250 gross per month.  His role included a wide range of duties from ceremonial and practical work with the respondent employ.

The complainant submitted that on 29th August 2019, afeter arriving in work and getting ready for his shift, he was sent home by Mr. RB, Head of Operations.  He was unfortunately later for work that morning and apologised when the issue was raised with him  he submitted that Mr. B alleged that he was unfit for work.

The complainant submitted that he received 2 emails for Mr. B on 29th August, which stated that he had been late for work and was allegedly unfit for work due to an alleged smell of alcohol.  The complainant submitted that at no stage during the process was he referred to Occupational Health to medically assess whether he was fit for work.

The complainant outlined that after a period of annual leave he was then suspended from work with pay and advised in writing that the matters set out in the emails of 29th August were to be investigated by an external investigator, Ms. BT of BS (investigation company). 

He outlined the following sequence of events:

·        That the investigation process took place between September and December 2020,

·        That he was interviewed on 15th October where he had explained that he had not been under the influence of alcohol but that he had been out the night before

·        That the investigation process concluded in December 2019 with the report being issued on 4th December 2019

·        That the allegations against the complainant were upheld

·        That the complainant was then invited to attend a disciplinary hearing on 16th December 2019 and was advised that he could bring a colleague of his choice to the meeting but was not advised that he could bring a trade union representative despite the serious nature and potential consequences of the meeting

·        That he was also provided with a copy of the respondent’s disciplinary policy which stated in relation to the appeals process that “Employees have the right to representation by a colleague at any appeal hearing.”

·        That the disciplinary meeting took place on 16th December and was chaired by Mr. RBl, Manager and Ms. MC, HR Manager.  At that meeting the complainant explained that he had not been unfit for work on 29th August 2019.

·        That on 17th December 2019 the complainant received a letter of dismissal from Ms. C, advising that the allegations against him were deemed to be gross misconduct and that the sanction against him was of summary dismissal without notice

·        That at the time of his dismissal, the complainant was on a final written warning, which had been issued in May 2019 but that the respondent was aware of mitigating circumstances and external issues which the complainant was experiencing throughout 2019, which related aback to an assault on him while leaving work one evening in 2015,

·        That the complainant appealed the decision by email of 20th December 2019

·        That the appeal hearing took place on 21st January 2020 and was heard by Ms. SR, Head of Tourism.

·        That at the meeting the complainant and his trade union representative (SIPTU) were advised that the union could not act or make representations on his behalf and that the respondent did not “have a trade union present.”

·        That SIPTU requested that it be noted in the minutes that the complainant was not afforded his rights to fair procedures

·        That the complainant received a letter dated 23rd January confirming that the appeal was not upheld and that the decision of dismissal remained.

The Law

The complainant pointed to the provision of Section 6(1) of the Act which states that “ subject to the provision of this section, the dismissal of an employee shall be deemed for the purpose of this act, to be an unfair dismissal, unless having regard to all the circumstances, there was substantial grounds justifying the dismissal.”

In addition, the complainant pointed to Section 6 (7) of the Act which 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 may be considers it appropriate to do so –

a)   to the reasonableness or otherwise to 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 complainant cited the decision ion the case of Concepta Brebner v Clann Mor Residential and Respite Ltd UD 1613/2014 where the Court stated:

“One of the most serious issues facing a person with significant consequences for that person is being dismissed from his/her employment.  The person may never be able to work again and in certain circumstances be ostracized by the community.  An employee may be unable to secure employment again.  It therefore behooves an employer to take great care before dismissing an employee especially where that employee will be looking for employment again in a specialized employment sector.”

The complainant also cited the decision in the case of Lennon v Bredin M1160/1979 where the Tribunal stated that “we have always held that this exemption [of summary dismissal] applies only to cases of very bad behaviour of such kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind scuh things as violent assault or larceny or behaviour in the same sort of serious category.  If the legislature had intended to exempt an employer from giving notice in such cases where behaviour fell short of being able to fairly be called the dirty word ‘misconduct’ we have always felt that the would have said so by adding such words as negligence, slovenly workmanship, bad timekeeping etc.  They did not do so.”

The complainant went on to cite the decision in the case of Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 where the High Court set out the following:

“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 complainant]…should state the complainant, factuallu clearly and fairly without any innuendo or hidden inference or conclusion.

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

c.      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;

d.      The actual decision, as to wheter a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of the dismissal on the employee.

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

The complainant further cited the decision in the case of Connaught Gold v Connor Rafter UD 48/2014 where it was held that “the role of the Tribunal in unfair dismissal cases is not to establish an objective standard but to ask that the decision to dismiss comes within the band of reasonable responses that an employer might take having regard to the particular circumstances of the case.”

Lastly, the complainant cited the decision in the case of Hennessy v Read & Write Shop UD 192/1978 where in deciding whether the dismissal of the Claimant was unfair the court applied a test of reasonableness to:

1.      “the nature and extent of the inquiry carried out by the respondent prior to the decision to dismiss the Claimant and to the conclusion arrived at the Respondent that, on the basis of the information resulting from such inquiry the Claimant should be dismissed.

2.      This requires the Tribunal to consider whether the employee was made aware of all the allegations and complaints that formed the basis of the proposed dismissal, whether the employee had adequate opportunity to deny allegations or explain the circumstances before the dismissal was taken, whether the employer believed that the employee had conducted himself or herself as alleged, whether the employer had reasonable grounds to sustain the belief, and if so, whether the penalty of dismissal was proportionate to the alleged conduct.”

The complainant submitted that Subsection 7 of the reinforces the concept of procedural fairness and requires the employer to establish that it followed a fair procedure. The complainant contended that the respondent did not follow a fair procedure in its’ application of the disciplinary process.  He submitted that he was not offered informal counselling as provided for in the disciplinary procedure after having been deemed unfit for work and he was not referred to Occupational Health.  In addition, he submitted that despite the extremely serious nature of the disciplinary process, he was not afforded the right to a representative, other than a work colleague, at the investigation meeting.

In relation to the disciplinary process the complainant pointed out that the respondent’s disciplinary Procedure did not provide for representation other than a work colleague even in the most serious case of allegations under the heading gross misconduct.  The complainant submitted that this is in breach of SI 146.  The complainant submitted that he was not advised to bring a trade union representative to the disciplinary hearing.

In relation to the appeal process the complainant submitted that his SIPTU representative was not allowed to make representations on his behalf and again contended that this was a further breach of fair procedures as comprehended by S.I. 146.  The complainant submitted that the principal of proportionality in relation to unfair dismissal has also been disregarded by the respondent.  The complainant accepted that he was late for work on 29th August 2019 but disputes that he was unfit for work. The complainant submitted that it was open to the respondent to consider a range of sanctions or supports that could have been offered to the complainant considering all the mitigating circumstances.

The complainant submitted that there was no evidence put forward that the complainant’s performance was impaired and for that reason a reasonable employer would not have treated the smelling of alcohol as gross misconduct or conduct justifying dismissal.  The complainant submitted that the respondent rather should have taken all reasonable steps to help the complainant but instead they dismissed him without notice.

In conclusion the complainant pointed out that he had over 6 years service with the respondent and had a good working relationship with his colleagues.  He submitted that case law provides that the Adjudication Officer is not required to decide if he/she would dismiss in the same circumstances or substitute it’s own view for the employer’s view.  The complainant submitted that the appropriate approach is to ask was it reasonably open to the employer to make the decision it did and was it proportionate and within the band of reasonable responses to the extent that the respondent had substantial grounds to dismiss the complainant.

The complainant submitted that the sanction of dismissal was unfair, unreasonable and disproportionate in the circumstances and asked that the Adjudication Officer find that the termination of his employment was an unfair dismissal and award him compensation for loss of earnings since the time of his dismissal.

Representations at hearing:

At hearing the complainant representative outlined the sequence of events as set out in the complainant submission and stated that there were serious concerns about the process utilised by the respondent, particularly in relation to the disciplinary and appeals process.

She stated that the respondent had skipped stages of the disciplinary procedure as no informal counselling had ever taken place.  She advised that the respondent was aware of struggles being experienced by the complainant arising from an assault while leaving work some years earlier and that the respondent was aware that the complainant was taking prescribed medication at the time of the alleged incident in August 2019.  She stated that this was not taken into consideration by the respondent in the disciplinary process.

The complainant representative stated that the complainant was advised of his right to bring a work colleague for support at the hearing but was not advised that he could have his trade union representative present.  She stated that this placed him at a particular disadvantage in circumstances where the respondent manager conducting the disciplinary hearing had the benefit of being accompanied by the HR Manager. 

In relation to the appeal hearing which she attended with the complainant she stated that she was not allowed to make any representations to that hearing on behalf of the complainant and that this, and her objections were noted in the minutes of the meeting at her request.  She stated that this was a serious breach of the provisions of S.I. 146 of 2000.

In conclusion the complainant representative stated that the respondent had not applied a fair procedure and had not acted reasonably in applying the ultimate sanction of dismissal.  She stated that the complainants’ medical issues were not explored or considered in any way and that. In the circumstances it was open to the respondent to consider other sanctions that fell short of dismissal, while providing help and support to the complainant.  In all these circumstances she requested that the complainant’s dismissal be found to be unfair and that the complainant be compensated for his losses. 

In relation to his loss the complainant representative confirmed that the complainant was hampered in seeking alternative employment based on his on-going medical issues and the fact that his experience in his role with the respondent was in a specialised area.

Complainant Evidence

The complainant did not give any direct evidence to the hearing.

I considered carefully the oral and written submissions made by both parties at the hearing, as well as the case law opened by the parties.

I noted that the facts of the dismissal and the investigation, disciplinary/appeals processes were not in dispute.

In those circumstances I consider that the questions which I must consider are as follows:

1.      Did the respondent apply fair procedures in addressing the allegations with the complainant?

2.      Was the sanction imposed by the respondent within the band of reasonable sanctions?

Procedural Fairness

In considering the question of fairness of the various processes in the instant case I paid particular attention to the question of compliance with the provisions of S.I. 146 of 2000.

In relation to the earlier stages of the disciplinary procedure it is clear that the respondent did not conduct a specific informal counselling meeting with the complainant as set out in their own disciplinary policy.  It is also clear from the evidence provided that there were many informal conversations with the complainant prior to embarking on the formal disciplinary procedure.

From the evidence at hearing and the documentation provided it is clear that at the remaining early stages of the disciplinary procedures the complainant was clearly on notice of the charges against him, was given adequate notice of hearings, was provided with the right to representation and was given the opportunity to respond to issues under consideration prior to a decision being taken to impose a sanction.  In addition, on each occasion the complainant was given the option to avail of an appeals process.

In relation to the investigation process I noted that the respondent appointed an external investigator who ensured that the allegations were put to the complainant in advance of any hearing, that the terms of reference were issued, together with relevant company policies.

The investigator also provided the complainant with the opportunity to bring his choice of representative to the investigation hearing and made significant effort to alert the complainant to all evidence that had the potential to have negative implications for him.  The complainant was given the opportunity to respond to all such evidence and to question or challenge any evidence where he had concerns.  In relation to the findings made I noted that the investigator set out the basis for her findings, which were made on the balance of probabilities.

I summary, I found the investigation process to be flawless and the findings made to have been reasonable based on the totality of the evidence gathered.

In relation to the disciplinary procedure, I noted that the respondent did give appropriate information and notice to the complainant of the disciplinary meeting in advance and did alert the complainant to his right to be represented in accordance with their disciplinary policy.  I noted the respondent position that the complainant did not seek to bring a trade union official to that hearing.  This position was not disputed by the complainant at hearing.  I noted that the respondent provided the complainant with the opportunity to respond to the allegations and the findings against him and that his responses were consistent with those made during the course of the investigation.  I noted that the sanction imposed was issued after consideration of the discussions at the disciplinary hearing and that the complainant was advised of his right of appeal.  Based on the foregoing I find that the procedure applied throughout the disciplinary procedure was in line with S.I. 146 of 2000.

In relation to the appeals process I noted that the respondent acted in a timely manner, taking into account the Christmas holiday period.  I noted that the complainant had been given adequate notice of the hearing and that the manager conducting the appeal had no previous involvement in the matter. I noted that the complainant was advised of his right to be represented by a work colleague and that he opted instead to bring his trade union official to the hearing.  I noted that there was no suggestion that the trade union official was removed from the meeting but I noted with concern that the trade union official was not allowed to speak on behalf of or make any representations on behalf of the complainant.  I consider this to be a breach of the provisions of S.I. 146 of 2000. 

It is settled law that an employer has the right not to recognise a particular trade union or indeed, any union if it so chooses.  However, in permitting the trade union official to remain the respondent had recognised the union, at a minimum for the purpose of representing the complainant in this instance.  In such circumstances it was grossly unfair in my view to then effectively “gag” the representative and not allow them to provide any mitigation or information on behalf of an employee who was clearly vulnerable in the process.

Was the sanction of dismissal within the band of reasonableness?

I noted the respondent position that the complainant had been found to have attended work while suffering from the after effects of alcohol consumption and that the respondent was entitled to consider this as gross misconduct and therefore impose the ultimate sanction of dismissal, particularly in circumstances where the complainant was already on a final written warning.

I noted the complainant position that he did not accept that he was unfit for work on the day, though I further noted that he had confirmed to the investigation that he had been out drinking the night before, had taken medication afterwards (which he should not have done) and that he had slept late as a result.  I noted that he was woken by a colleague contacting him to establish where he was and I noted that he had hastened to work soon after.  In this regard and based on the evidence provided to the investigator I believe her findings in this regard to be soundly based.

It seems reasonable to me in general that an employer should be able to expect its employees to attend work on time and presenting in a professional manner, most particularly in circumstances where that employee is engaging with members of the public.  Where the opposite occurs I believe a reasonable employer in similar circumstances might well consider the appropriate sanction to be dismissal.

However, in this particular instance, there was ample evidence to suggest that the complainant may have been suffering from a medical condition brought on by an earlier traumatic experience.  The respondent was aware of all the circumstances surrounding this event and indeed, had been supportive of the complainant through a long absence from work associated with same.  I am, however, concerned that no effort was made at any stage at the time of the incident on 29th August or throughout the process to refer the complainant to the Occupation Health service to ascertain if there was an underlying medical condition underpinning his behaviour at the time of the incident.  I am also acutely aware that a various times throughout the process it was evident that the complainant could not remember various events/happenings and became confused and unable to fully engage, yet again no steps were taken to assess his fitness to participate in the process.

I consider that in these particular circumstances another reasonable employer might not have proceeded to impose a sanction of dismissal but would, in the first instance, have secured medical advice that would have been factored into the decision making process.

In these circumstances and based on the procedural deficiency noted above in relation to the appeals process I find that the complainant was unfairly dismissed by the employer.

Mitigating his loss.

I noted that the complainant remained unemployed at the date of the second hearing and did not present any evidence of having made efforts to secure employment and I am obliged to take this into account in making any award for compensation.

I noted that the complainant was in receipt of €2250 per month and at the date of the final hearing was unemployed for a period of just short of 2 years.  In those circumstances I calculate his loss to be €54,000 in earnings.  However, as no evidence was presented by the complainant that he had sought to mitigate his loss and as his own behaviour had contributed significantly to his own dismissal, I find that the complainant should be award €18,000.

I have found that the complainant was unfairly dismissed and so it is my decision that this complaint was well founded.  In these circumstances I decide that the complainant should be awarded the sum of €18,000 as compensation for his loss.

Unfair dismissal, unfair procedures, severity of sanction