ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00045608

Parties:

Complaint:

Date of Adjudication Hearing:  20/05/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the UnfairDismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.  In accordance with Section 41 (13) of the Workplace Relations Act 2015 I have decided to anonymise my decision due to references to sexual harassment being involved in this case.

Background:

The Complainant was dismissed by the Respondent for gross misconduct on foot of a complaint of sexual harassment.

Summary of Respondent’s Case:

The Complainant’s employment was terminated for gross misconduct arising from serious allegations against him following a full investigation and disciplinary process.

The Complainant worked as a Senior Paediatric Physiotherapist. Two complaints were made in December 2021 against the Complainant alleging serious inappropriate behaviour by the Complainant. The complaints were lodged under the Respondent’s Dignity at Work Policy.

The informal complaints were dealt with in line with the informal stage of the Dignity at Work Policy. The Dignity at Work Policy provides for a preliminary screening to decide if the alleged behaviour, which is the subject of the complaint, falls within the definition of bullying, harassment or sexual harassment as outlined in the policy. If the complaint is deemed to come within the scope of the Dignity at Work Policy, the matter may be referred for mediation. If the matter cannot be resolved through mediation, a formal investigation will be carried out. The policy provides for an informal stage and a formal stage. In line with the policy, following the receipt of the two informal complaints of inappropriate behaviour, a safety plan was put in place on 18 December 2019. It was at the request of the two staff members for the matter to be dealt with informally at that point in time. The essences of the informal complaints were as follows:-

• Frequent, inappropriate and unwanted personal comments regarding appearance, clothing.
• Unwanted and uninvited frequent calls to their offices.
• Offered to check ‘tone’ of one of the staff in his physio office.
• Unwanted physical touch on numerous occasions e.g., hugs, attempted kiss, kisses to the head, placed hand on buttocks of staff member.
• Question of a sexual nature posed during regular conversation.
• Unwanted invitations to lunch.
• Comments on activities of staff members throughout the day – giving rise to the feeling of being watched.

The safety plan set out in detail that the Complainant’s behaviour needed to change immediately. All inappropriate behaviour needed to stop. The line manger would feed back to the Complainants’ line managers that the meeting has taken place confirming the following:

• The inappropriate behaviour had been outlined to the Complainant and it has been clarified how she expects the Complainant to behave from now on.
• The Complainant had understood the impact of his behaviour on his work colleagues; and
• He had committed to changing his behaviour.

The informal safety plan was adhered to for a period in 2020 and then on 17 December 2020, a further informal complaint was made against the Complainant. The safety plan was updated on 22 January 2021 and appropriate behaviours were reiterated and some further safeguards were added.

By email dated 28th January 2021, M lodged a formal complaint against the Complainant. In that formal complaint, it was stated that an informal safety plan had been established which the Complainant more or less adhered to for a period of time in 2020. However, on 17/12/20, it was reported again by way of informal complaint that the Complainant had once again over the course of a few weeks, began parking beside A who was the other person who had made the informal complaint. This greatly impacted M and she therefore decided to elevate her informal complaint to a formal complaint. 

The Employee Relations department conducted a preliminary screening in relation to the formal complaints and a response to the preliminary screening stage was provided by the Complainant in relation to both complaints made against him and copies of the documentation in relation to the preliminary screening. The preliminary screening found that the alleged behaviour, which was the subject of the complaint, fell within the definition of bullying, harassment or sexual harassment. An outcome of the preliminary screening of the formal complaint was sent to M and sent to the Complainant. Following that, it was established that an offer of mediation was not accepted by M, and she wished to proceed with a formal investigation. Terms of reference were established for an investigation into the formal complaint.

Interviews were conducted with relevant parties and witnesses.

A draft investigation report was completed on 26/05/22 with the investigation report ultimately completed on 4/08/22.

The investigator found that in relation to the complaint that there were:

• frequent and inappropriate personal comments about her hair, skin, clothes, figure in certain clothes.
• Uninvited calls to her office
• Unwelcomed touching of her clothes
• Unwelcomed physical contact
• Persistent requests for lunch

The investigator found on the balance of probability that the complaint/allegation as detailed had been found to have occurred. The Complainant and M were given an opportunity to respond to the draft report. By a letter dated 14/09/22, the Complainant was informed that the Respondent intended to initiate disciplinary proceedings under the disciplinary procedure for employees. A copy of the policy was included for the Complainant’s attention. The letter further confirmed that the action was being taken following an investigation into allegations of sexual harassment, which allegations had been made against him. The allegations are said to have occurred between October and November 2019.

A copy of the final investigation report dated 4/8/22 was included. The letter confirmed that a meeting was scheduled for Monday 10 October 2022 which would be attended by Ms W Chief Officer, and Ms N, Head of Human Resources. The letter confirmed that the Complainant was entitled to be accompanied by a Union Representative or work colleague and that the Disciplinary Hearing would take place under Stage 4 of the Disciplinary Procedure. The letter also confirmed that the outcome could result in the termination of his employment.

The Disciplinary Hearing took place on 10 October. The Complainant was accompanied at all times by his Union Representative. The Complainant provided a submission in writing to the Disciplinary Hearing.

By letter dated 14 October 2022, the Complainant was advised of the outcome of the Disciplinary Hearing. He was advised that his behaviour fell fall short of the behaviour expected from any reasonable employee of the Respondent. He was advised that consideration was given of alternative sanctions short of dismissal.   However, having regard to the findings made against him in the investigation report the view was formed that sanctions short of dismissal is not appropriate in these circumstances. His employment was therefore terminated with effect from 2 November 2022. The letter went on to confirm the right of appeal to the decision to terminate employment.

On 17 October the Union Representative raised the issue of A being in a separate process.  This was responded to and the right of appeal re-iterated.

The Complainant did not appeal the decision.  This was despite the Complainant being advised of his right of appeal in the letter dated 14 October 2022 and in the Respondent’s Disciplinary Procedure. Therefore, the internal process was not exhausted.

LEGAL SUBMISSIONS

In Bank of Ireland -v- Reilly 2015 IEHC 241 Noonan J stated that “the onus is on the employer to establish that there are substantial grounds justifying the dismissal and that have resulted wholly or mainly from one of the matters specified in Section 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the Court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the Court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland -v- Lindsay UK EAT/0506/09/DM. I respectfully agree with the views expressed by Judge Linane in Allied Irish Banks -v- Purcell 2012 23 ELR189, where she commented (at page 4) “references made to the decision of the Court of Appeal in British Leyland UK Limited -v- Swift 1981 IOLR91 and the following statement of Lord Denning MR at page 93 “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 of these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonable take a different view.” It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one that EAT or the Court would have taken.

The interaction between the “band of reasonable responses” and procedural issues was analysed by Browne-Wilkinson J in Iceland Frozen Foods -v- Jones 1983 1 ICR17: “since the present state of the law can only be found by going through a number of different authorities, it may be convenient here if we should seek to summarise the present law. We consider that the authorities establish that in all the correct approach for the Industrial Tribunal to adopt in answering the question posed by Section 57(3) of the Act of 1978 is as follows: 1. The starting point should always be the words of Section 57(3) themselves; 2. In applying this section, an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair; 3. In judging the reasonableness of the employer’s conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; 4. In many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another; 5. The function of the Industrial Tribunal, as an Industrial Jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair. …..As an alternative ground relied on by the Industrial Tribunal, namely procedural unfairness, as we have said we do not think it the correct approach to deal separately with the reasonableness of the substantive decision to dismiss, and the reasonableness of the procedure adopted. The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all of the circumstances.

In J Sainsbury plc -v- Hitt 2003 ICR 111 the United Kingdom Court of Appeal also approved this particular approach in the context of dismissal for misconduct. In that case, the Court of Appeal held that the Employment Tribunal had incorrectly substituted its own opinion as to what was a reasonable or adequate investigation, instead of applying the objective standard of the reasonable employer as to what was a reasonable investigation in the circumstances. The Court held that the range of reasonable responses test applied not only to the question of whether or not the suspected misconduct may have taken place but also the reasonableness of the decision to dismiss and to the reasonableness of the investigation.

Summary

The Respondent conducted an investigation, disciplinary hearing and offered an appeal process which the Complainant chose not to avail of. At all times during the process the Complainant was given an opportunity to put his side forward. His comments and replies were considered by the Respondent before the decision was taken by the Respondent to terminate his employment. In the circumstances, it is submitted the decision to dismiss was fair, reasonable and proportionate in all of the circumstances. The Complainant failed to exhaust the Respondent’s internal processes and gave no reason for not appealing the decision. This is something that must be considered by the Adjudication Officer in view of the well-established case law on this point.

The Complainant was not unfairly dismissed. He was dismissed for gross misconduct.

Summary of Complainant’s Case:

The Complainant was employed by the Respondent a senior paediatric physiotherapist from 24th September 2007 until his dismissal on or about 2nd November 2022 by the Respondent.

At the time of dismissal his gross salary was €64,380 per annum.

Following his dismissal the Complainant was eventually re-employed on or about January 2023 on an annual salary, which pays him € 17,980 less per annum. The Complainant was unemployed for a period of two months and therefore has a loss totalling and therefore has a loss totalling €9,580.

The Complainant was dismissed following a stage IV disciplinary procedure (“the disciplinary procedure”) conducted in or around October 2022. The disciplinary procedure was instigated and conducted on foot of an investigation commissioned in or around March 2021 (” the investigation”) that produced a report on or about 4th August 2022 (“the investigation report”).

The sole complaint grounding the investigation, report and disciplinary process and therefore the Complainant’s dismissal was that made by Ms M on 28th January 2021 (“the complaint”).

The substance of the complaint related to matters from 2019. At that time M made an informal complaint grounded upon the same facts (“the M 2019 informal complaint”). At the same time in 2019 an informal complaint (“the A 2019 informal complaint”) was also made by Ms A. The 2019 informal complaints were raised under the Dignity at Work Policy (2009) (“the dignity at work policy”).

The Respondent, by the agreement of all parties, including M, chose to deal with the informal 2019 complaints by way of a safety plan (“the 2019 safety plan”).

It is the position of the Complainant that the matters that led to his dismissal had been dispensed with in 2019 by way of the 2019 safety plan and the allegations against him (in particular with regard to M were to all intents and purposes “spent”.

Despite the matter having been dealt with in 2019, The Respondent chose to reopen the issues when M re-lodged her prior informal complaint as a formal complaint (“the M 2021 formal complaint”). The M 2021 formal complaint was lodged, not on the basis of new facts, but on the basis she became aware that on or about 18th November 2021 A had lodged an additional informal complaint alleging breach of the 2019 safety plan (“the A 2021 informal complaint”).

It is important to note that the M 2021 formal complaint was grounded on the same facts as the M 2019 informal complaint.

By agreement the Respondent dealt with the A 2021 informal complaint by updating the safety plan on or about 22 January 2021 (“the 2021 safety plan”). Therefore, by 22 December 2021 the Respondent had dealt with all issues arising.

Despite this, when the M 2021 formal complaint was lodged the Respondent then, in breach of fair procedures, reopened matters from 2019 by initiating the investigation and subsequent disciplinary process.

Further, or in the alternative in the course of the investigation and disciplinary process it failed to address matters by way of either the 2019 safety plan or the 2021 safety plan.

The Complainant was therefore subject to unfair procedures in having to face allegations already dealt with. Further or in the alternative, even on the Respondent’s own terms the Complainant was subject to unfair procedures in that the matters arising were not dealt with by reference to either safety plan.

In conjunction with the above the decision to dismiss the Complainant was unfair because it was based on facts from 2019 that had already been dealt with and allegations that were “spent”.

In addition to the above the decision to dismiss in 2022 was disproportionate in circumstances where the creation of the safety plans by the Respondent acknowledged that a lesser sanction was appropriate.

In or around November 2019 the Complainant was requested to meet with his line manager, Ms B. In the course of that meeting the Complainant was informed that M and A had made allegations against him of inappropriate behaviour. These were the 2019 informal complaints referred to above.

Although the Complainant did not (and does not) accept allegations relating to touching his fellow employee on the buttocks, the persistent invitations to attend lunch, or what has been an accusation of deliberately and consistently parking his car right beside that of M. He did acknowledge the majority of the behaviours identified. However, he was clear that he did not intend to be inappropriate in any way or make anyone feel uncomfortable. That said, at the same time he acknowledged that the important aspect was how his behaviour was received.

The Complainant agreed to re-familiarise himself with the dignity at work policy in detail and to alter his behaviours and routine as required. That being the case the Respondent and all parties, including M, ultimately agreed to resolve the 2019 informal complaints by way of the 2019 safety plan.

As appears in the 2019 safety plan it expressly stated that it was being put in place “in line with the Dignity at Work Policy”. The dignity at work policy makes provision for alternative but potentially escalating resolutions to complaints.

The procedures escalate from being dealt with informally by a line manager, escalation to a more senior manager, preliminary screening, mediation and investigation. In respect of informal resolution the procedures provide inter alia states as follows:

“The employee may … request a manager to approach the person on his / her behalf. Sometimes the alleged perpetrator is genuinely unaware that his / her behaviour is unwelcome and causing distress. An informal discussion is often sufficient to alert the person concerned to the effects of his / her behaviour and can lead to greater understanding and an agreement that the behaviour will stop.”

The 2019 safety plan went on to state inter alia as follows:

“However, the complainants can opt to go the formal route at any point if they feel the matter is not satisfactorily resolved.”

[…]

“His behaviour needs to change immediately (re read the behaviours that have caused concern to date) All inappropriate behaviour needs to stop. Line manager will feedback to the complainant’s line manager that the meeting has taken place confirming the following

The inappropriate behaviour has been outlined to [the Complainant] and [Manager B] has clarified how she expects him to behave from now on in.

• He has understood the impact of his behaviour on his work colleagues.
• He has committed to changing his behaviour If the above changes do not happen, the complainant can request a formal investigation under the D@W policy. This is a very serious matter.”

The Complainant notes that there is no provision for a safety plan in any of the procedures. However, it is submitted that it is clear that the Respondent and persons making the complaints in 2019 chose to deal with the complaints by way of the informal procedures. This was agreed to by the Complainant and he acted accordingly.

It is submitted that the Complainant abided by the 2019 safety plan and altered his behaviours by avoiding all contact with M and A. To do so he fundamentally altered his routine by avoiding taking tea breaks or lunches in the communal canteen, avoiding all communal areas generally, combined with parking his car in a designated car park closest to his office.

On foot of the informal process having been agreed to by all parties, the 2019 safety plan and his adherence to it the Complainant submits that the issues leading to same had been dealt with.

The Complainant had two limited and unintentional interactions with A, one in 2020 and another on or about 18th January 2021.

On foot of the interactions, and after discussing the matter with M, Ms A made an additional informal complaint under the dignity at work policy. This was again progressed under the informal procedures when the Complainant’s line manager raised it with him on the basis that the 2019 safety plan had been breached. While the Complainant was of the view that he had made every effort to adhere to the 2019 safety plan he agreed to additions as appear under the heading “Safety Plan updated 22nd January 2021”.

Given the creation of the 2021 safety plan the Respondent had dealt with matters and, it is submitted they were again “spent”.

Despite the complaints having been dealt with by way of informal complaint and the 2021 safety plan, approximately one week later on the 28th of January 2021, the M 2021 formal complaint was then lodged.  That formal complaint was a reiteration of matters that occurred in 2019 and which had been dealt with under the safety plan.

The 2021 M formal complaint was therefore seeking to reopen a complaint already made and dealt with in an agreed manner under the Respondent’s own informal procedures. The only grounds offered for doing so related to the experience of third party.

Despite having dealt with all matters by 22nd January 2021, and in breach of fair procedures and its own procedures, the Respondent instigated a formal investigation under the dignity at work policy.

It is clear from the terms of reference, that the subject matter of the investigation was one and the same as that in the 2019 M informal complaint. In the circumstances it was tasked dealing with a matter that the Respondent had already dispensed with under its own informal procedures.

It remains at all times the position of the Complainant that the investigation and subsequent disciplinary process were a breach of fair procedures and the Respondent’s own procedures arising from the fact that all of the matters had been dealt with under the safety plans. However, in response to the Respondent’s case it is also important to note that in the course of the investigation the Complainant did not accept the allegations relating to the 15th of November 2019.

The Complainant received a draft copy of the investigation report on or about 22nd May 2022 in respect of which he took issue with several findings. In particular he took issue with a finding (appearing at page 34 of the final report) that he had confirmed the evidence given by A (as a witness). At all times the Complainant stated that he would not comment on matters raised by A because she had made a complaint the subject of a different process.

Despite the Complainant not commenting on A’s evidence, the final report (at pp. 34 – 35) stated that he confirmed this evidence and wrongly used that purported confirmation as grounds to find on the balance of probabilities that the incident of 15th November had occurred (despite his consistent denials).

By way of a letter dated 14th September 2022 the Complainant was informed that a disciplinary hearing was to be convened.

As appears in the said letter the decision to subject the Complainant to the disciplinary process was based on the investigation and its report. The decision was therefore also entirely informed by and based on the facts and issues that had been the subject of the 2019 M informal complaint, which in turn was dealt with by the 2019 safety plan. The letter of 14th September 2022 did not make any reference to the safety plan or breaches relating to same.

The hearing only dealt with the matters from October and November 2019 and did not in any way deal with the safety plans or any alleged breaches of same.

As with the investigation the Complainant denied the allegation of sexual assault. He also did so in his written submission made to the disciplinary hearing and again took issue that certain statements of the investigation report grounding its findings were not amended.

The Disciplinary process Manager was asked to amend the facts set out in her letter of 14th October 2022 but by of letter dated 20th October 2022 declined to accede to that request for the reasons stated therein.

In light of the fact that the investigation, disciplinary process and his ultimate dismissal were entirely tainted by having been predicated on a complaint already dealt with, the Complainant was advised by his trade union representative that he could not receive a fair appeal for the same reasons. In the circumstances he was and remains of the view that his only remedy lay by way of adjudication through the WRC.

SUMMARY OF LAW THAT THE COMPLAINANT WILL RELY ON

Unfair dismissal

Section 6(1) of the Unfair Dismissals Act, 1977 (as amended) (“the Act”) provides:

‘Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.’

The default position is therefore that the dismissal of the Complainant was unfair. To displace this position the Respondent must prove that the reasons offered for his dismissal equate to substantial grounds as envisaged by the Act and case law. This is clear from the provisions of section 6 (6) of the Act which provides 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 or mainly from one or more of the matters specified in subsection (4) [which includes the conduct of the employee] of this section or that there were substantial grounds justifying the dismissal.’

In the case of Raymond Hammett v Dun Laoighre – Rathdown County Council [ADJ-00044333] the Adjudicator explained the application of the above law as follows:

‘The Acts deem a dismissal to be unfair until the Respondent can demonstrate that it was neither substantively nor procedurally unfair. The combined effect of the above sections of the Act requires me to consider whether or not the Respondent’s decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish either the guilt or innocence of the employee. The function of the Adjudicator is to assess what a reasonable employer, in the Respondent’s position and circumstances, might have done. This is the standard by which the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.’

In the case of DHL Express (Ireland) LTD and Michael Coughlan (UDD1738) the Labour Court found that in dismissing the employee undue weight was placed on the employee’s previous disciplinary record. It also found that there was little or no consideration given to alternative sanctions.

Fair procedures and abuse of process

Section 6(7) of the Act (as amended) imposes the obligation of fair procedures on the Respondent in respect of the dismissal as follows:

‘(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so - (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.’

The excerpt from Hammett above makes it clear that a dismissal will be unfair unless the Respondent can show that it was both substantively and procedurally fair. This is consistent with section 6 of the Act in that the Respondent must show substantial grounds for the dismissal having regard to all of the circumstances. In the circumstances the Adjudicator in Hammett commented as follows:

‘As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.’

In conjunction with the above the Complainant is entitled to be treated in the course of his dealings with the Respondent in accordance with natural and constitutional justice (of which it is submitted the above statutory and case law is a reflection).

The Complainant submits that within the context of the obligation to abide by fair procedures and natural and constitutional justice, the law relating to abuse of process is relevant to the instant case. Within the realm of abuse of process it is submitted that the issue of fair procedures raises an issue analogous to the doctrine of Res Judicata.

Put simply the doctrine of Res Judicata is a maxim of the civil courts that an issue or action already tried and decided upon cannot be reagitated between the same parties. In Vico Limited & Others v Bank of Ireland [2016] IECA 273 the Court of appeal grounded Res Judicata within the wider frame of abuse of process and quoted (at paragraph 29) Megarry V. C. who described the latter doctrine as follows: “a man ought not to be allowed to be allowed to litigate a second time what has already been decided between himself and the other party to litigation”.

In the circumstances it is submitted that where a person has been the subject of a process dealing with allegations, submitted to that process and been the subject of its outcome and or sanction, then that process is finalised and spent. In light of the above law, it is submitted that where the same person is subsequently made to answer the same allegations that is an abuse of process and inherently and manifestly unfair.

CONCLUSIONS

It is settled law that it is for the Respondent to show that its decision to dismiss the Complainant was within the band of reasonable decisions possible in the circumstances. It is also settled that in reaching that decision the procedures that led to that conclusion must have been fair.

The 2021 M formal complaint that formed the sole basis for the procedures that led to the Complainant’s dismissal was to all intents and purposes the exact same as the 2019 M informal complaint. When the 2019 informal complaint was raised in 2019 the Respondent (and M) chose to deal with it informally by way of the 2019 safety plan. The Complainant engaged with that process and adhered to its sanction and or outcome by signing up to the plan and altering his behaviour.

Therefore, the facts and issues that later were the grounds for a formal complaint, investigation, disciplinary process and dismissal in 2021 and 2022 previously been dealt with and the allegations “spent”.

The entire process that led to the Complainants dismissal was fatally flawed both in terms of the general right to fair procedures and the Respondent’s own procedures. Where the investigation and all subsequent processes were grounded in such a flaw it is submitted that no internal appeal could have cured matters because it would have been limited to the substance of the 2021 M complaint.

In light of the foregoing the Complainant submits that the Respondent dismissed him on grounds it had already dispensed with and where he had already been subject to a process and sanction. He submits that this was substantively and procedurally unfair and requests compensation as a remedy.

Findings and Conclusions:

Section 6 (1) of the Unfair Dismissals Acts 1977-2015 states subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

6 (4) provides:

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

(b) the conduct of the employee,

The seminal cases in relation to dismissal for misconduct include:

Looney & Co v Looney UD843/1984 where the Employment Appeals Tribunal held that:

“It is not for the Tribunal to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate, or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did..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 would have done in the same position..”

In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct:

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

In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated:

“The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

In this instant case, I base my findings and conclusions on three key questions:

 (1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation that the Complainant was guilty of the alleged wrongdoing?

(2) Was there a fair investigation? and

(3) was the penalty proportionate?

In this instant case, there was a fair and transparent investigation and disciplinary process during which the Complainant had at all times the benefit of union representation.   I note he failed to appeal the outcome.   There had been a number of attempts by the Respondent to affect an improvement in the behaviour of the Complainant.  I do not accept the arguments of the Complainant in relation to 2019, 2020 and 2021 of “spent” allegations.  The facts underline the situation of an ongoing and very serious problem.  The Complainant was given the opportunity to address his behaviour towards his colleagues and the M complaint was duly properly and formally investigated when he failed to abide by his commitments.  The fact of the matter is that the Complainant was dismissed for gross misconduct following an investigation into a formal complaint.  The serious breach of trust and confidence could only lead to the Respondent applying the appropriate sanction.  I find given the circumstances, the Respondent met the 3-tier test and the Complainant was not unfairly dismissed.  I find the complaint of unfair dismissal to be not well founded.  

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the reasons cited above, I have decided that the complaint of unfair dismissal is not well founded.

Dated:   02-08-24

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: