Complainant

Respondent

Parties

Kieff  Bosse

Hendrick Hotel

Representatives

  Self-represented

 IBEC

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-00049793-001

21/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00049793-002

21/04/2022

The Complainant was employed by the Respondent from the 22nd of May 2019 to the 5th of April 2022 as a senior bar person.   The complainant submitted the within claims under Section 8 of the Unfair Dismissal Act, 1977 and Section 77 of the Employment Equality Act, 1998 on 21st of April 2022.

The complainant on that date also submitted the same 2 claims against a different respondent bearing the complaint reference ADJ-00039844.

The complainant had previously submitted a number of claims on 25th of February 2022 against the within respondent.   These claims were submitted under the following pieces of legislation Section 77 of the Employment Equality Act, 1998, Section 81E of the Pensions Act, 1990, Schedule 2 of the Employment Permits Act, 2006 – Penalisation, Section 27 of the OWT- Penalisation, Section 27 of the OWT- Penalisation, Section 14 of the Protection of Employees (Fixed term) work 2003, Fixed Term Work & Part time Work.  These claims bear the complaint reference ADJ-00037872.

All of the claims were scheduled for hearing at the same time and date and were heard together on 28/07/2023.

The within claim was submitted on the 21st of April 2022 and so the cognisable 6-month period in respect of this claim dates from 22nd of October 2021.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00049793-001

21/04/2022

The respondent submits that the complainant was dismissed on grounds of gross misconduct.

The respondent further submits that in accordance with the Unfair Dismissals Acts 1977 - 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.

The respondent submits that a complaint was received from another staff member in relation to the complainant’s behaviour on the 12th of November 2021, there was an alleged incident of inappropriate behaviour and allegation of misconduct lodged against the Complainant.  This was investigated through the Respondents disciplinary policy, and the outcome recommended to move forward to a disciplinary.      

A witness was also interviewed in this process and a statement was provided by the witness.  On the 8th of December 2021, the outcome of the investigation report was issued by the General Manager (LK) and in reply to this on the 9th of December 2021, the Complainant emailed the Respondent alleging unprofessionalism and discrimination and wishing to make a formal complaint about a witness from the investigation in November.

 On the 10th of December 2021, the Respondent advised that the allegation made by the complainant would be dealt with separately but that the investigation report in respect of 12th of November complaint against the complainant had recommended the Respondent proceed to a disciplinary in respect of that matter.

On the 13th of December 2021, The Respondent sent the complainant the equal opportunities policy along with some information around whether or not he wishes to raise a grievance and if so a full explanation of the nature and extent of the grievance needs to be received.    On the 13th of December 2021, The Respondent sent the Complainant an invite to a disciplinary hearing which would be held with remotely due to Covid 19 restrictions at the time. This was refused by the Complainant due to Covid.

In early January 2022, The Respondent received emails from the Complainant about alleged unfair treatment by the accommodation manager involved in the original November investigation.  In response to this the Respondent emailed the Complainant to outline the grievance procedures and requested further details on all three emails that had allegations of complaints in.

 On the 4th of January 2022, The Respondent sent an email to the Complainant outlining a choice of two different virtual times and dates for the disciplinary meeting. The Complainant replied to say he wanted to meet when everything is back to normal after Covid-19.

 On the 5 th of January 2022, The Complainant sent an email in response to standard company pay increase with an issue on shifts. The Complainant sent a message to say he will only work the morning shift and ‘’we can get someone to work his bar shifts and if we wish to pay him sick leave until breakfast is resumed, we can and that everyone gets the roster they ask for’’.

The General Manager (LK) replied to the complainant to say he cannot accommodate all early shifts and that the Complainant is employed as a senior bar tender to work 5 eight-hour shift over 7 days inclusive of weekends and nowhere in contract states his work is Monday to Friday or specific shift times.

On the 6th of January 2022, The Respondent sent an email to the Complainant to say they wished to conclude the disciplinary process and advised of their wish to hold a virtual meeting to do so.

A separate email was sent to the Complainant advising details required for his grievance. 

On the 10th of January 2022, the Complainant emailed in reply to the virtual meeting invitation to say all evidence has not been sent to him, he requested clock in information and access to CCTV.    He also alleged it was a poor investigation and fake accusations, he alleged that he was bullied by HR and that he felt the Respondent was trying to pressure him to attend a meeting.   The complainant was denied access to this CCTV as it was not within the remit of this investigation for the November issue.

On the 10th of January 2022, The Complainant emailed the Respondent outlining this was his 2nd time trying to raise a grievance about the Accommodation Manager on Duty and that he had sent a grievance on 17th November. He stated that his social and personal life was affected by this, and he found it hard to sleep due to the fake allegations.

 On the 11th of January 2022, Ms Drohan (Group Human Resources Manager) replied to inform the employee that an investigation had already taken place in regard to the 12th of November incident and an outcome report had been issued. The Respondent also sent details of the employee assistance programme (EAP).

The Complainant replied to this email saying’’ tifco lawyers stop playing games, act like grown up and stop with fake accusations against me’’.

On the 12th of January 2022, Ms Drohan emailed the Complainant stating that clock in cards and CCTV were not within the remit of the disciplinary and were not pertaining to the events of the investigation. She also outlined the investigation scope and outcome.

 Ms Drohan also advised the Complainant that his failure to engage in the disciplinary process would result in the meeting taking place in his absence.

The Complainant replied to say the Respondent cannot deny his request and he was not interested in attending a remote hearing. 

 On the 12th of January 2022 Ms Drohan advised the Complainant that the meeting would take place and failure to engage without good reason would result in meeting taking place in his absence.  The Complainant replied to this email to say he is not comfortable with Ms Drohan’s bullying and threats.   He also set out that it was not against the law and not in his contract to attend virtual meetings.    He set out he would attend a face-to-face meeting after lockdown.

 On the 19th of January 2022, Ms Drohan sent an email to encourage the Complainant to attend the meeting.

 The Complainant replied to say he was not interested and never asked for a meeting. Ms Drohan replied to say the meeting is in relation to the disciplinary as per the investigation outcome report issued in December.

The Complainant replied to say due to stress and lies against him with the job, he was not fit enough at the minute to join any meeting and that is his decision and that he will gladly reschedule as soon as he feels better and can be fit enough for a meeting.

 On the 25th of January 2022, Ms Drohan sent an email urging the Complainant to visit his GP and outlined that she understood the process can be concerning. As the restrictions had lifted, she suggested to arrange a face to face, and the details of a face-to-face meeting sent to the Complainant.

After this the Complainant had tried to ring Ms Drohan to which she did not answer.  

 On the 26th of January 2022, the Complainant sent a WhatsApp message to say he needed to reschedule the meeting and that he has been to the GP, and he will need to talk through the issues he is having with the company and HR. He said he will reschedule the meeting in his own time. In this message he also attached his calls to Ms Drohan she did not answer and set out ‘’I will stand my ground until the truth comes out’’.   The Complainant then sent a document (without date, signature, stamp, address) via WhatsApp saying ‘’patient attended my surgery today to book an appointment for next week for his mental health’’.

On the 28th of January 2022, Ms Drohan replied to the Complainant with a copy of a WhatsApp message and said she did not use WhatsApp as a comminution tool within the business or in the role. She advised the reason for the meeting again and that the meeting was postponed until an update could be received from the Complainant’s doctor on fitness to work and fitness to engage in a process.     Ms Drohan again shared the details of the EAP with the Complainant and advised that as per the Respondents company policy the doctor’s certificate must clearly state, name and address of doctor, name and address of employee, doctor’s signature, date of issue and expected duration of incapacitation.

On the 3rd of February 2022, the Complainant sent a document to Ms Drohan via WhatsApp to say ‘’the Complainant attended me today and undergoing significant stress and anxiety related to his job. He is pending disciplinary meeting. He is unfit to attend the meeting due to mental health and till further consultation with me which I have booked in 4 weeks’ time. Meanwhile I have arranged for him to see a councillor’’.

On the 4th of February 2022, the Respondent received an email from the Complainant to say he did not like how the General Manager Lukas Kodi (LK) was speaking to him and said he was being rude and disrespectful. This was in relation the Complainant booking weekends off.

 Ms Drohan replied asking for the full details and advised his contract was 5 shifts over 7 days and if time off is requested this cannot always be guaranteed and is based on the business needs. This is set out in his terms and conditions of employment.    Ms Drohan sent the bullying and harassment and grievance policies to him.     Ms Drohan replied to the Complainant’s WhatsApp message to reiterate she does not use WhatsApp and requested the medical certificate outline his address and other information as requested. Again, the grievance, bullying and harassment policies were sent and a request of the breakdown of the grievance details were asked for.

On the 9th of February 2022, Ms Drohan emailed again to request medical certificate as requested. On the 11th of February 2022, Ms Drohan met with the Complainant in the hotel informally while he was attending work and where they had a discussion about the medical certificate and Ms Drohan explained it was a reasonable request and what was required.   

In response to this the Complainant explained he did not have to give it and it was not a reasonable request. Also discussed were the issues around requested time off and shift times.   

On the 12th of February 2022, Ms Drohan received an email from the Complainant to say he did not appreciate being harassed on shift and the Respondent ‘’trying to sneak a meeting’’. He advised he would have to get the guards involved for his own safety against bullying, discrimination, and defamation.    Ms Drohan replied to this to say she refutes these allegations, and the conversation was informal as she was in the hotel for another meeting.

On the 14th of February 2022, the Complainant emailed documents to the Respondent similar to before with no details on them but down as standard consultations and the amount that the GP had charged him.   Ms Drohan replied to say she was unsure what the documents pertained to and requested a medical certificate to state he was unable to attend disciplinary meetings for 4 weeks.

 On the 14th of February 2022, The Complainant replied to say it’s a private doctor and does not have to show anything in particular on the document.   On the 17th of February 2022, the Complainant was spoken to by the GM about absenteeism to which the Complainant advised that he is allowed 8 unexcused absences per year and stated that in 2021 he only had 3 days and this year he had 2 and he has explained about his babysitter, and that he is being purposely given weekends.

 On the 18th of February 2022, the Complainant left a call-in head office for Ms Drohan. When Ms Drohan tried to call him back there was no answer, so she sent a follow up email. The Complainant was due to start work at 5pm but came in at 3pm to start work. He was advised that his roster start time was 5pm. He then handed over documents to Ms. J the Accommodations Manager. These documents included a text message from the GM that was sent in January and a screen shot saying days of work cannot be changed.

The accommodations manager Joanne then asked him if he had seen the roster and he said yes.   The Financial Controller Ms Williams then stepped in dealt with this situation and advised the complainant that if he left before the end of shift, it would be viewed as unauthorised absence.   

On this occasion Ms. Williams took the complainant to the canteen and had a discussion with the complainant indicating that he had been rostered to work this shift and clarifying whether he was refusing to work the shift.    During this conversation it is alleged that the complainant had raised his voice at Ms. Williams and pointed his finger aggressively while standing over her in an intimidating fashion following which Ms. Williams lodged a complaint in respect of the complainant’s behaviour.  

The following day the Complainant sent an email to say that he was told when he was hired his shift was 7:00pm-3.30pm or 3.30-11pm and he won’t tolerate any disrespect from her or management, and that management need to show him some respect.

On the 20th of February 2022, the Complainant sent an email to inform Ms Drohan that a staff member had left early, and he included a photograph of the lobby area where guests were.

 On the 21st of February 2022, an email was sent to the Complainant looking for his medical certificate to verify his inability to take part in the disciplinary procedure, he was advised that he needed to give a full medical certificate by 23rd February at 5pm and a certificate to say he is fit to attend work as had been previously requested.   He was advised that if the Respondent failed to receive a medical certificate, then an appointment would be made for him with the company doctor.

The Complainant replied to this to say he did not have to provide this information as it was his own personal information.      On the 23rd of February 2022, an appointment for the company doctor was sent to the Complainant to which he replied ‘’No thanks’’.

 On the 23rd of February 2022, there was an allegation of inappropriate behaviour and or conduct submitted to the Respondent company against the Complainant in relation to an incident involving another staff member, Mr. O Keefe, on the 18th of February 2022. The allegations related to threatening and abusing behaviour towards two different staff members.  

On the 24th of February 2022, the Complainant was suspended on full pay pending the completion of an investigation. At this meeting he was given a copy of the allegations against him.

On the 28th of February 2022, the Complainant arrived in Tifco head office to get details of who to make a complaint about Ms Drohan too.

The complainant was given the appropriate email address.  On the 2nd of March 2022, the Complainant emailed Ms Drohan, Ms Williams with the General Manager in BCC and also sent to info@tifco in relation ‘’how can we deal with the racism or discrimination going on in the Hendricks’’.

He also sent a 2nd email claiming Ms Drohan had been threatening and bullying him for months.  Again, the Respondent sent another letter to the Complainant outlining that he must submit a medical certificate and that he would be advised of a further company doctor appointment.

 On the 4th of March 2022, an email was sent to the Complainant confirming the company doctor appointment on 8th March that had been organised for him. Separately he was sent an email from Ms Brady inviting him for an investigation meeting in relation to the two complaints made by colleagues against him. He replied with a laughing emoji and then the following emails. • Sent pictures of two employees on their phones. • Information on racism from Ms Drohan. • That the new GM is ruining the place. • Advised he would not be attending any meetings until physically fit. • Information on the employee who he believed left early.

On the 5th of March 2022, The Complainant sent an email to say he has his own GP.   On the 7th of March 2023, The Complainant sent another email to the Respondent company saying ‘’Most managers in the Hendricks do not want me there due to the fact I’m always complaining about the bad work they are doing, since the day Lukas started, he was doing everything wrong and wouldn’t listen to me. Ciara is very racist and bad discrimination about me ‘’. He also sent this email to Ms Brady (The investigator).

 Another email was sent to Ms Brady, Lukas, and Ms Drohan ‘’no one can do their job right and they shouldn’t be working for HR, Ciara has been covering things. All these people are new, and I have been here 3 years’’.

 Another email was sent to Ms Brady outlining that ‘’Ciara ignored grievance discrimination, Lukas is unprofessional and not fit for the job and made a lot of mistakes in the hotel, I think Stefan was much better than him, screen shot of p33 of the handbook included’’.

 On the 8th of March 2022, an invite letter was sent to the Complainant inviting him to a disciplinary. All relevant documented was also shared with the Complainant. He was invited due to his refusal to adhere to the company policy by submitting an acceptable certificate of sickness. He was informed of his right to bring a representative.

 The Complainant replied to this asking ‘’how can the Respondent deal with racism or discrimination found in the Hendricks’’ he then sent another email saying the hotel is falling apart due to bad management. He also asked for CCTV footage to be sent via email to him but was denied this.

The Complainant then emailed Ms Brady to re-iterate that she had his number to ring him, but stated he was not attending a meeting due to stress and anxiety.   On the 10th of March 2022, Ms Brady emailed the Complainant and acknowledged the Complainant’s email to confirm refusal to attend the two meetings on Friday & requested a medical certificate to be sent.

The Complainant emailed Ms Brady explaining that he believed that the documents are not up to date and there are redactions and to say he was suspended and that he did not have to answer to her and to stop annoying him. He also advised he will have a meeting when it is suitable to him. He mentioned that Ms Drohan, Ms Brady, and Ms Buckley have given him even more stress and anxiety.

 Ms Brady then emailed the following documents to the Complainant: • Statement from interview conducted with Ms Williams, complainant. • Statement from interview conducted with Mr O’Keefe, complainant. • Statement from interview conducted with Ms Lojas, witness. • Statement from interview conducted with Mr Calahane, witness. • Statement from interview conducted with Mr Raj, witness.

 On the 11th of March 2022, Ms Brady emailed the Complainant to say there was meeting scheduled that day about his issues with Ms. Drohan and that he had received two invites to the meeting and if no substantiated reason was received by the company to warrant a postponement of the meeting that it would begin at the scheduled time. He failed to attend the meeting.

 On the 14th of March 2022, Ms Brady emailed the Complainant attaching the investigation minutes and stating that he had failed to attend the meeting without substantiated reason. 

 On the 15th & 16th of March 2022, The Respondent received various emails from the Complainant about alleged racism and discrimination.   On the 21st of March 2023, Ms Brady issued an outcome report following an investigation into the Complainant’s allegations against Ms Drohan. The allegations were not upheld. 

On the 22nd of March 2023 Ms Drohan emailed the Complainant with an invite to disciplinary on the 25th of March. This hearing related to the original November issue of misconduct towards a colleague.   

 On the 23rd of March 2023, Ms Brady issued an outcome report following an investigation into the alleged inappropriate behaviour towards PC and NW. The outcome of this report was that the issue should move to disciplinary.

 On the 24th of March 2023, Ms Buckley (MB) emailed the Complainant the minutes of disciplinary meeting held on the 22.03.22 along with a sanction of a First Written Warning in regard to refusal to comply with company policy by submitting an acceptable certificate of sickness and by non-attendance of scheduled appointment with the Company doctor.

 On the 28th of March 2022, MB invited the Complainant to a disciplinary in relation to inappropriate behaviour towards to colleagues NW and PC and in relation to unauthorised absences from work.    All rules of natural justice and S.I 146/2000 were followed in this meeting. Three other witnesses were interviewed in relation to the alleged incident with the two colleagues.

 On the 29th of March 2022, Ms Drohan sent the Complainant the outcome of disciplinary hearing on November issue which was a final written warning. 

 On the 5th of April 2022, MB issued the outcome of disciplinary on the issue relating to alleged mis conduct and inappropriate behaviour towards two colleagues PC and NW and his unauthorised absences from work the week of the 20/02/2022. The outcome of this was termination of employment on the grounds of gross misconduct.    The complainant was advised of his right to appeal the decision.

 The Respondent does not tolerate any sort of aggressive or threatening behaviour towards any staff member.   The Complainant then visited the office and hotel and was advised to put any requests in writing. He also phoned and text numerous people with various allegations and requested redundancy and sent a photo of the hotel lobby.   

 On the 6th of April 2022, Enda O’Meara (Appeals Officer) emailed the Complainant to say that he would contact him about the appeal details. The Complainant then emailed Ms Drohan to request two weeks’ paid notice and he also asked for a redundancy.    

On the 16th of April 2022, The Complainant received a letter from EOM to say the appeal would take place on the 27th of April at 11am. The Two grounds provided for appeal were

1) You did not receive two weeks’ notice of your dismissal

2). Ms. Lojas and Mr Kodi (GM) (two witnesses) did not reply truthfully to the questions put to them during the investigation proves / made untrue statements during those meetings.

The Complainant replied on the 25th of April to this “I am away enjoying my Easter holidays and will not be back till next Thursday so I will a new time for the meeting thanks’’.

 On the 25th of April 2022, EOM (Appeals officer) informed him the appeal will go ahead as planned Ms Drohan also emailed the Complainant on this day explaining she had reviewed his annual leave and entitlement to public holidays, and these are being paid.

On the 26th of April 2022, EOM emailed the Complainant to confirm the grounds of appeal and confirmed that a decision had been made to postpone the appeal from 27th April to 29th April as per the Complainant’s request as he was on holidays.  

The Complainant confirmed he would be there in response to the email.   On the 27th of April 2022, Ms Drohan received an email from the Complainant to state that he is not going through this again, he knows what he is owed and queries when he will he receive the payment.   Ms Drohan replied to say his payslip for public holidays was sent that morning and payment would be made the next day through payroll.   

On the 28th of April 2022, Ms Drohan again received an email from the Complainant stating that he was owed 2 weeks holidays from 2020 and that even though he was on layoff he is still entitled to them and 2 weeks’ notice.    Ms Drohan replied and explained annual leave is not accrued on layoff and explained that all public holidays have been paid for 2022.   On the 29th of April 2022, the appeal was held but the Complainant did not attend.    

On the 9th of May 2022, the outcome of the appeal was issued to the Complainant. The appeal ground was not upheld.

The respondent submits that in accordance with the Unfair Dismissals Acts 1977 - 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.

The respondent submitted that having considered all the facts, the responses and explanations of the Complainant were not considered reasonable nor sufficient such as to mitigate the extreme seriousness and far-reaching implications of his actions.    The respondent submits s that the Complainant’s actions amounted to gross misconduct. The Respondent advised that it does not tolerate any form of abusive or threatening behaviour towards any staff member and in addition to this the complainant had failed to engage in the process in providing any documentation in relation to his unauthorised absences from work ending the week of the 20th of February 2022.

The respondent advised the hearing that in considering what sanction to apply the company had regard to the seriousness of the allegations and also the representations made by the Complainant within the process itself which in this case the Complainant failed to attend any stage of the process.  The respondent submits that in relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in

Looney & Co. Ltd v Looney, UD 843/1984 is as follows: “It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such the company’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place.

The respondent submits that the actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. This position has been upheld by the Employment Appeals Tribunal on a number of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004, where the Tribunal stated that: “[The claimant’s actions] destroyed the respondent’s trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”

 In relation to the procedures used to implement this dismissal, the Respondent advised the hearing that the Complainant was afforded all benefits of fair procedure, in line with the company’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The Complainant was informed in advance as to the nature of the allegation against him. He was afforded the right to representation. He was further provided with a number of fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Complainant’s representations before any decision was made or action taken. In light of all of the above, the Respondent believes that the dismissal of the Complainant was procedurally fair in all respects.

The Respondent contends that the actions of the Complainant contributed wholly to his dismissal. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015.

This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, where the Tribunal saw appropriate not to award any redress to the Complainant in light of his inappropriate actions.

The complainant submits that he is writing this complaint due to unfair dismissal.

He submits that he was on paid submission suspension due to an investigation since March 2022.

He submits that on April 15th the respondent sent him an e-mail and terminated him without two weeks’ notice.  

The complainant submits he has been treated very badly for months with unfair treatment discrimination and bullying. He submits that all of this bad treatment has affected his social life, the problems in his relationships, anger, stress, and difficulty sleeping at night due to anxiety. He does not agree with the termination.

The complainant agrees that he did not attend any of the disciplinary meetings.

In accordance with the Unfair Dismissals Acts 1977 - 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

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

4)      Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    the capability, competence, or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

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

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

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

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

I note the respondent’s position that the complainant’s actions amounted to gross misconduct.  I also note the respondent position that it does not tolerate any form of abusive or threatening behaviour towards any staff member.  In this case it is also clear from the evidence adduced that the employee failed to engage in the process in providing any documentation in relation to his unauthorised absences from work ending the week of the 20th of February 2022.    The respondent advised the hearing that when considering what sanction to apply the company had regard to the seriousness of the allegations and also the representations made by the Complainant within the process itself which in this case the Complainant failed to attend any stage of the process.

I note firstly that the complainant refused to engage in the process and in response to each invitation to a disciplinary meeting he submitted a number of accusations and allegations against witnesses involved in the investigation and disciplinary process.  I understand how this may have been frustrating for the respondent to deal with.

 The complainant at the hearing stated that he would have engaged in the disciplinary process if he had been provided with the CCTV footage when he requested it.  I also note that he was at a later stage offered an opportunity to view the footage, but he refused this offer.

The respondent in response to the complainant’s request for the CCTV stated that the footage was not relevant to the issue the subject matter of the investigation as it was the complainant’s inappropriate behaviour towards a staff member which was at issue.   It is clear from the complainant’s evidence that he considered the CCTV to be a relevant aspect but that he was focusing on the initial allegation against him in respect of failing to clock out on time which was made by a staff member.    The respondent repeatedly stated that the complainant was not disciplined in respect of this allegation but was disciplined due to the aggressive manner in which he dealt with the staff member involved.  The respondent advised the hearing that it had repeatedly tried to impress upon the complainant that he was not being disciplined in respect of the clocking allegation itself. 

The respondent also stated that the complainant could not be sent the CCTV footage by email as per his request but that he was offered the opportunity to view the CCTV footage on the premises at a later date.   There was some dispute over when the complainant requested the footage as the complainant seemed to be mixing up the incidents the subject of the disciplinary process, but nothing turns on this.

I also note that the respondent stated that the complainant was at a later stage offered an opportunity to view the CCTV footage on the premises, but he refused this offer.   The complainant in response to this at the hearing stated, “why should I do it when it suited them?”

I note that the complainant initially refused to attend the disciplinary meetings due to Covid and then as time went on, he provided various reasons for his non-attendance.  I also note that the Complainant at the hearing stated that he did not attend and added ‘I know how these things go’.  

It is clear from the evidence adduced that the complainant in February 2022 cited health reasons as his reasons for his continued refusal to participate in the disciplinary process but then did not engage fully with the respondent in this regard by failing to provide appropriate medical certification to verify this and by refusing to attend the company doctor when an appointment was arranged by the respondent.

I note that the complainant disagreed with being rostered to work from 5 o clock as opposed to 3 o clock but his way of dealing with this was to still attend work at the time he wished to start and to inform the respondent that he was not working the rostered shift but was working the shift he wished to work.    It is clear from the evidence adduced that it was in this context that the second disciplinary incident arose and the complaints of threatening behaviour towards another staff member had arisen.    It may be that the complainant had his reasons for behaving in such a way and had he attended or participated in the disciplinary meetings he may have been able to explain these reasons and or mitigate his behaviour and possibly ensure a more favourable outcome.  However, he did not participate in the process and so denied himself the opportunity to present any mitigating circumstances in respect of the allegations made against him.

The complainant at the hearing stated that he was discriminated against by the respondent on grounds of his race and that the respondent’s failure to send him CCTV footage of an incident which took place in November 2021 amounts to discrimination on grounds of race.  The claim of discrimination is dealt with under a separate complaint reference CA-00049793-002.

In addition, the complainant advised the hearing that he had been discriminated, bullied and his character defamed with the fake allegations against him on the 12th of November.   He submits that he received no help from HR after writing reports after reports against the manager who has been falsely accusing him.   He submits that he asked for footage from cameras to be revealed and to show the truth, but it has been denied by the general manager and HR numerous times.

The complainant also advised the hearing that the respondent had pretended to close for breakfast during covid as they did not want to give him hours. 

The complainant submits that he had to go to his GP due to anxiety, mental health, and stress, after numerous complaints about management.  He advised the hearing that he was suspended with pay for a week because he refused to go to any disciplinary meeting until the respondent showed him the CCTV and proved to him that he was in the wrong, but it has been denied numerous times.

The respondent in reply stated that the complainant was initially refused access to the CCTV footage as it was not relevant to the investigation it was conducting in respect of a staff members complaint against the complainant.  The respondent however later offered the complainant an opportunity to view the CCTV footage, but he refused.    The complainant when questioned ta he hearing as to why he refused to take the opportunity to view the CCTV when offered replied “Why should I do it then when it suits them”.

The complainant at the hearing stated that he was bullied by the respondent by being asked to attend meetings in respect of a disciplinary process.  The complainant also took issue with being sent email invitations to such meetings and stated that they could have just called him into the office while he was in the hotel at work instead of sending him emails. The complainant at the hearing stated that the respondent was always sending him letters or emails to come to meetings, but he said he did not respond as ‘he knows how it goes’.

The complainant advised the hearing that there was also an incident involving clock in cards where someone had accused the complainant of sitting in the break room for an hour before clocking out.  The complainant told the hearing that he had not done this and that he had emailed and asked for the clock in cards about 3 or 4 times before they were finally given to him.  He stated that he was proven right on that occasion.   The respondent advised the hearing that the complainant was not disciplined in respect of the clocking allegation only in respect of his behaviour towards a staff member.   The respondent at the hearing reiterated a number of times that the clocking allegation did not form part of the investigation and that the complainant was not investigated or disciplined in relation to same.  No evidence was adduced by the complainant to suggest was disciplined or discriminated against in respect of this matter.    The complainant argued that this was how the whole thing started as a staff member had accused him of taking extra time on his break and that he had shouted at her in response to this.  The respondent advised the hearing that a complaint was received in respect of the complainant’s behaviour and not in respect of the clock issue.

The respondent advised the hearing that it was frustrated in its attempts to schedule a meeting and on the 19th of January 2022, sent an email to encourage the Complainant to attend the meeting.    The Complainant replied to say he is not interested and never asked for a meeting.

I note that the complainant failed to provide appropriate medical certificates when requested by the respondent and that he also failed to attend company doctor appointments which were made for him.   In addition, I note that the complainant when dissatisfied with his rostered start time of 5pm continued to arrive at work at 3pm to start work at that time and finish 2 hours earlier than rostered.

As regards the proportionality of the decision to dismiss I note that the complainant had previously been issued with a written warning and with a final written warning in respect of two other issues which had been the subject of disciplinary proceedings and which the complainant had failed to participate in.     Thus, it is clear that the respondent in this case did consider lesser sanctions and did issue the lesser sanctions and notified the complainant of all of these matters, but the complainant continued to refuse to participate in the process or to provide a valid appropriate medical cert to verify his claim that he was unable to participate in the process.

The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view.’

Having regard to all of the circumstances of this case, I accept the Respondent’s submission that the sanction of dismissal imposed on the Complainant was within the band of reasonable responses open to a reasonable employer in the circumstances.   I therefore find the that the dismissal was both reasonable and substantively fair and I must now examine if it was procedurally fair prior to making a decision on whether the Complainant was unfairly dismissed.

In this case the Respondent set up an investigation and a subsequent disciplinary and appeal process.   The Complainant in this case declined to take part in the disciplinary procedure in respect of the various incidents at one point citing health reasons for his failure to engage but when asked to verify this by providing appropriate medicate certification declined to do so.  In addition, I note that the respondent sought to refer the complainant to the company doctorand arranged an appointment in respect of same to which the complainant replied, “no thanks”.

The respondent advised the hearing that the complainant was informed in advance as to the nature of the allegations against him, he was afforded the right to representation and he was further provided with a number of fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him.    The respondent advised the hearing that all of the evidence in its entirety was considered, including the Complainant’s representations before any decision was made or action taken. In light of all of the above, the Respondent believes that the dismissal of the Complainant was procedurally fair in all respects.    The Respondent contends that the actions of the Complainant contributed wholly to his dismissal.

In examining the procedural fairness surrounding the dismissal, I note that the entire process was well documented, and that the complainant was given numerous opportunities to attend the various disciplinary meetings and participate in the process.  I note that the complainant did not participate in the process for various reasons before asserting that he was unable for health reasons to participate in th disciplinary process.  

I also note that the respondent at this point paused the process and in consideration of the complainant’s assertions about his health issues advised him to see a doctor before requesting certification of his inability to participate in the disciplinary process.   I also note that the respondent when appropriate certification was not provided referred the complainant to the company doctor and made an appointment for him with that doctor to which the complainant replied, “no thanks”.

I note that several of the meetings took place in the complainant’s absence but that this was due to the complainant’s refusal to attend or participate in the meetings despite being invited to same and given an opportunity to defend his position.  When asked at the hearing why he did not attend he replied, “I know how these things go”.  The complainant also made several accusations against staff members of the respondent referring to them as liars and fake accusations.

The issue of the CCTV footage was repeatedly referenced in the hearing.  The complainant at the hearing stated that he would have engaged in the disciplinary process if he had been provided with the CCTV footage when he requested it.  I also note that he was at a later stage offered an opportunity to view the footage, but he refused this offer.

The respondent also stated that the complainant could not be sent the CCTV footage by email as per his request but that he was offered the opportunity to view the CCTV footage on the premises at a later date.   There was some dispute over when the complainant requested the footage as the complainant seemed to be mixing up the incidents the subject of the disciplinary process, but nothing turns on this.

Overall, having considered all of the evidence and the circumstances of this case I am satisfied that the investigation and disciplinary process complied with the requirements of fair procedures and natural justice.

Having considered the evidence adduced at the hearing and the submissions received and based on the foregoing I find that the decision of the Respondent to dismiss the Complainant was a reasonable response to the circumstances presented.  I find that the complaint of unfair dismissal is not well-founded.

Having considered the evidence adduced at the hearing and the submissions received and based on the foregoing I find that the decision of the Respondent to dismiss the Complainant was a reasonable response to the circumstances presented.  I am also satisfied that the investigation and disciplinary process complied with the requirements of fair procedures and natural justice.

Accordingly, I declare the complaint of unfair dismissal to be not well-founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00049793-002

21/04/2022

The complainant submits that he was discriminated against by the respondent in respect of his conditions of employment on grounds of his race.  He submits that others received more favourable treatment than him and that this was due to his race.   He submits that the respondent’s failure to send him CCTV footage of an incident which took place in November 2021 amounts to discrimination on grounds of race.

He notes in his Complaint form ‘’I have been treated less favourably due to an incident that happened on the 12/11/2023 when I asked for camera footage for months, but it was refused. Niamh Williams who made a complaint about me was allowed to view this CCTV footage’’.

In addition, the complainant submitted that he has been discriminated, bullied and defamation of character with the fake allegations against him on the 12th of November.   He submits that he received no help from HR after writing reports after reports against the manager who has been falsely accusing him.   He submits that he asked for footage from cameras to be revealed and to show the truth, but it has been denied by the general manager and HR numerous times.

The complainant also submits that the respondent has been trying everything to terminate him and write him up for any little incident while all the other staff do what they want, and nothing is said to them.

The complainant also advised the hearing that the respondent had pretended to close for breakfast during covid as they did not want to give him hours. 

The complainant submits that he had to go to his GP due to anxiety, mental health, and stress, after numerous complaints about management.

He submits he was suspended with pay for a week because he refused to go to any disciplinary meeting until the respondent showed him the CCTV and proved to him that he was in the wrong, but it has been denied numerous times.   

The respondent submits that the complainant was not discriminated against.

The respondent submits that a complaint was received from another staff member in relation to the complainant’s behaviour on the 12th of November 2021, there was an alleged incident of inappropriate behaviour and allegation of misconduct lodged against the Complainant.  This was investigated through the Respondents disciplinary policy, and the outcome recommended to move forward to a disciplinary.

The Complainant has alleged discrimination on the race ground in his complaint form. He notes in his Complaint form ‘’I have been treated less favourably due to an incident that happened on the 12/11/2023 when I asked for camera footage for months, but it was refused. Niamh Williams who made a complaint about me was allowed to view this CCTV footage’’.

In response to this the Respondent submits the Complainant was not in a position to view the CCTV in relation to the November incident as it was not in the remit of the investigation.   In relation to the allegation which amounted to gross misconduct had he attended the investigation meeting and or taken part in any stage of the process he would have been able to view the CCTV. His failure to do so meant no viewing of the CCTV took place. The Complainant did request for the CCTV to be emailed to him, but this is not normal practice for the Respondent and for GPDR reasons the Respondent was not in a position to share the video via email.

The Complainant alleges that he was harassed. During his employment the Respondent investigated these allegations in relation to allegations he made about Ms Drohan. The Complainant refused to part take in the process and or provide any details of such harassment. On the 21st of March 2023, the Complainant received this outcome report, and the allegations were not upheld.

The issue for decision by me now is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015.

In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …..”

Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons that ..(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), 

Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of race. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.   It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The complainant in asserting that he was discriminated against on grounds of race stated that his first complaint started back in November 2021.  He stated that it took a month for the respondent to be on his side.    He advised the hearing that he had been treated less favourably than a named work colleague in respect of being permitted to view CCTV footage.  

 The respondent in reply stated that the complainant was initially refused access to the CCTV footage as it was not relevant to the investigation it was conducting in respect of a staff members complaint about the complainant’s conduct.  The respondent however later offered the complainant an opportunity to view the CCTV footage, but he refused.    The complainant when questioned at the hearing as to why he refused to take the opportunity to view the CCTV when offered replied “Why should I do it then when it suits them”.

The respondent in reply to this advised the hearing that a complaint was received from another staff member in relation to the complainant’s behaviour on the 12th of November 2021, there was an alleged incident of inappropriate behaviour and allegation of misconduct lodged against the Complainant.  This was investigated through the Respondents disciplinary policy, and the outcome recommended to move forward to a disciplinary.    The respondent stated that a witness was also interviewed in this process and a statement was provided by the witness.  On the 8th of December 2021, the outcome of the investigation report was issued by the General Manager (LK) and in reply to this on the 9th of December 2021, the Complainant emailed the Respondent alleging unprofessionalism and discrimination and wishing to make a formal complaint about a witness from the investigation in November.     The Respondent had advised that the allegation made by the complainant would be dealt with separately but that the investigation report in respect of 12th of November complaint against the complainant had recommended the Respondent proceed to a disciplinary in respect of that matter.     The respondent advised the hearing that it had over the next few months repeatedly requested the complainant attend meetings as part of the disciplinary procedure which he refused to do for various reasons.

The respondent during this period also sought details of the allegations being made by the complainant against the respondent witness and urged him to use the grievance procedure to progress his complaint.

The complainant at the hearing stated that he was bullied by the respondent by being asked to attend meetings in respect of a disciplinary process.  The complainant also took issue with being sent email invitations to such meetings and stated that they could have just called him into the office while he was in the hotel at work instead of sending him emails.The complainant at the hearing stated that the respondent was always sending him letters or emails to come to meetings, but he said he did not respond as he knows how it goes.

The respondent advised the hearing that the disciplinary meeting arose out of the November investigation into a complaint by a staff member in relation to the complainant’s conduct.  The respondent stated that this disciplinary meeting was scheduled and cancelled numerous times between December and February due to the complainant’s refusal/inability to attend.

 The complainant advised the hearing that there was also an incident involving clock in cards where someone had accused the complainant of sitting in the break room for an hour before clocking out or staying on break too long.  The complainant told the hearing that he had not done this and that he had emailed and asked for the clock in cards about 3 or 4 times before they were finally given to him.  He stated that he was proven right on that occasion.   The respondent advised the hearing that the complainant was not disciplined in respect of the clocking allegation only in respect of his behaviour towards a staff member.   The respondent at the hearing reiterated a number of times that the clocking allegation did not form part of the investigation and that the complainant was not investigated or disciplined in relation to same.  No evidence was adduced by the complainant to suggest was disciplined or discriminated against in respect of this matter.    The complainant argued that this was how the whole thing started as she had accused him of taking extra time on his break and that the had shouted at her in response to this.  The respondent advised the hearing that a complaint was received in respect of the complainant’s behaviour and not in respect of the clock issue.

The complainant also advised the hearing that the respondent had pretended to close for breakfast during covid as they did not want to give him hours.  The respondent in reply advised the hearing that the hotel at that time was at 30% occupancy due to Covid and that the decision not to open for breakfast was due to this fact and had nothing to do with the complainant or any attempt to provide him with with less hours.

The complainant at the hearing was not clear or consistent regarding dates and details of the allegations which were the subject of his complaint.  He thanked the respondent for providing its submission and said it helped to jog his memory of events.   The complainant also stated that the incidents had happened a long time ago and that he couldn’t remember everything clearly.

Having considered the totality of the evidence adduced in relation to these matters I am satisfied that the complainant was not discriminated against by the within respondent on grounds of race.

Having considered the totality of the evidence adduced in relation to these matters I am satisfied that the complainant was not discriminated against by the respondent on grounds of race.