Complainant

Respondent

Parties

Kenneth  Brennan

Maybin Support Services (Ireland) Ltd Momentum Support

Complainant

Respondent

Anonymised Parties

Representatives

Shonagh Byrne SIPTU

 Dermot O’Loughlin

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-00052941-001

23/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00052941-002

23/09/2022

The complainant was employed by the Respondent as a cleaning operative. Employment commenced on 1st January 2015 and ended on 11th July 2022. The Complainant worked 37 hours per week and earned €12.30 per hour.

This complaint was received by the Workplace Relations Commission on 23rd September 2022.

Introduction

Momentum Support is a trading name of Maybin Support Services (Ireland) Limited and was established in 1982. Employing in excess of 2,300 people and delivering more than 3 million hours of service per annum, Momentum provides award-winning consistently high standard of Soft Services to businesses and organisations based in UK and Ireland.

ABM, one of the world's largest providers of facility services and solutions acquired Momentum Support ("Momentum") in April 2022.

The Complainant, Mr. Brennan, began employment as a Cleaning Operative with the Company on the 13th September 2010 following a TUPE from a previous employer wherein he had an 11-year career.

GeneralBackground/Timeline ofNotableDates.

27th May 2022: Disciplinary incident involving the complainant Mr. Kenneth Brennan.

3rd June 2022:  Mr. Brennan attends an investigation meeting chaired by Ms. Paula Gaspari, a Site Manager with the Company.

24th June 2022:  Ms Gaspari issues her "Investigation Outcome Report" and finds, inter alia.

"KB admitted in our meeting that he did make inappropriate comments and jokes to MO'S on the 2 h May 2022 “

Ms Gaspari opined, amongst other things, that Mr Brennan's comments could be classified as "unwelcome sexual comments and jokes" as per the Dignity at Work policy.

1st July 2022:   Mr. Brennan participates in disciplinary meeting chaired by Ms. Sharon McNally, an Operations Manager with the Company

11th July 2022:  Ms. McNally, based on all the information presented to her, felt compelled to terminate Mr. Brennan's Contract of Employment as a result of the gross misconduct occasioned on his colleague, MO'S. The termination took immediate effect.

11th August 2022:    An appeal hearing is held and is conducted by Mr. Peter Brogan, an Operations Director with Momentum Support.

22nd August 2022:     Mr. Brogan upholds the decision to terminate Mr. Brennan's Contract of Employment.

Unfair Dismissal – Respondent’s argument.

1.     The Complainant clearly breached the Company's 'Dignity at Work Policy' by making lewd and sexual comments about young children in the workplace.

2.      These particularly offensive comments to his colleague provoked a physical confrontation which resulted in both he and his colleague being summarily dismissed.

3.     The Complainant has classified the offending remarks, inter alia, as a joke. It is both absurd and astounding that any reasonable individual would find these comments amusing.

4.     The Company operates in a very demanding and competitive industry where the optimum of all standards are required to successfully maintain and protect both their business and the employment of their employees. The Complainant's actions jeopardised their commercial standing with their client.

5.     The Company is obliged to do all it reasonably can to ensure there is never a repeat of this unacceptable conduct.

6.     The Complainant was only dismissed after a lengthy independent, impartial, and comprehensive disciplinary process.

7.      As can be evidenced from the agreed minutes of all the meetings conducted into this episode, the Complainant showed no meaningful remorse for his involvement in this extremely serious event.

 Minimum Notice - Respondent's argument

1.      As the Complainant was dismissed for reasons of gross misconduct, the contract of employment was terminated without notice.

Conclusion

In light of all contained herein and all the evidence that will be heard at this hearing, the company respectfully requests the Adjudication Officer to reject Mr. Brennan's complaints as a consequence of all the circumstances that prevailed.

Background

The Complainant commenced employment as a Cleaning Operative working in the customer site in 2002. In 2015 his employment transferred to the Respondents who took over the contract in customer site under a transfer of undertaking from another company who had the contract at that time.

The Complainant normally worked 37 hours per week and was paid €12.30 per hour.- (€455.10 per week gross).

On 27th May 2022 an incident took place in the Cleaning Room on the customer site between the Complainant and another colleague.

Following a heated conversation, the Complainant was assaulted by the other colleague who punched him in the face and then proceeded to block his exit from the room. The other colleague then went to the customer / client Foreman and reported the incident as

one of inappropriate comments from the Complainant.

Both the Complainant and the other party signed incident reports taken by Thomas Mahon, Momentum Support on that day. The incident was also reported to customer management.

The Complainant explained the incident to a member of customer management after the incident.

The Complainant was treated by First Aiders after the incident. There was no report provided to the Complainant in relation to the medical treatment he received, nor was a Health & Safety incident report provided.

Apart from the statement by the other party, there does not appear to be a written formal complaint against the Complainant from the customer in relation to the comments made by the Complainant.

On 30th May 2022 the Complainant received an invitation to an investigation meeting on 1st June in Head Office by Mr. James Mahon, Operations Manager to deal with the allegation against Mr. Brennan of inappropriate behavior. The invite did not mention the assault against Mr. Brennan.

The Investigation was to be caried out under the Procedures in the Dignity at Work policy.

There were no terms of reference agreed between the parties, which would normally be best practice in such investigations.

The Investigation meeting took place on 3rd June 2022 and was chaired by Ms. Paula Gaspari. Ms. Verona Pentony attended as note taker.

Mr. Brennan was represented by SIPTU at the meeting.

Mr. Brennan explained what had happened on the 27th of May, and how he had been assaulted by his colleague following a conversation about holidays. Mr. Brennan admitted to making an inappropriate comment in the conversation in response to inappropriate comments from the other person.

Mr. Brennan also advised PG that there had been a pattern of inappropriate comments over time from the other person in relation to Mr. Brennan’s family.

At the interview with the other party, he was not asked specific questions to confirm the exact wording of the entire conversation, and the exact wording of the comments by Mr. Brennan. The Investigator also failed to ask questions about him about blocking the door or why he had assaulted Mr. Brennan.

Following the investigation meeting with Mr. Brennan, the Investigation outcome report was issued on 24th June 2022 by Ms. Paula Gaspari.

The outcome found that Mr. Brennan’s comments fell under the definition of

‘unwelcome sexual comments and jokes and the behaviour was therefore gross misconduct.

There was no further investigation caried out by Ms. Gaspari which should have included:

·        Interviewing any member of customer management (two individual names were mentioned and redacted by the AO).

·        Interviewing Mr. Thomas Mahon who took the statements from the 2 people involved.

·        Interviewing the First Aiders,

·        Requesting a medical report

There were also inconsistencies between the statements taken from the other party and Mr. Brennan and the Investigator did not clarify the exact wording of the comments from either party especially in Mr. Brennan’s case where his comments were determined to be gross misconduct.

The Investigator clearly overstepped her role which should have been one of fact finding and determined that the comments from Mr. Brennan were of standard of gross misconduct as per the Dignity at Work policy. This was without having the exact wording of the comments clarified.

The outcome report was sent to Peter Brogan, Operations Director

Disciplinary Meeting

Mr. Brennan was suspended during the Disciplinary process.

On 27th June Ms. Sharon McNally Operations Manager invited Mr. Brennan to a

disciplinary hearing on 1st July 2022 to discuss the investigation findings.

The disciplinary hearing took place on 1st July 2022 and was chaired by Ms. McNally. Mr Brennan was represented by SIPTU.

Mr. Brennan explained again what had happened on 27th May and that he had been assaulted by the other person and then was blocked from leaving the room.

Mr. Brennan had made an inappropriate joke to try and diffuse a difficult conversation and was assaulted by his colleague as a result.

The disciplinary outcome was issued by Ms. McNally on 11th July and Mr. Brennan was advised that his employment was being terminated without notice as a result of gross

misconduct by him towards his colleague on 27th May 2022 with immediate effect.

Mr. Brennan appealed the decision to Mr. Peter Brogan and the appeal hearing took place on 11th August 2022.

Mr. Brennan again explained to Mr. Brogan that there had been a history of intimidation over a period of time from the other colleague to Mr. Brennan and that the inappropriate joke was made to deescalate a difficult conversation. There was no further investigation into this important point made by the Respondent at any stage.

The severity of the sanction of dismissal was also raised during the appeal and Mr. Brennan’s length of service and unblemished record.

The appeal outcome was issued on 22nd August 2022 and the decision to dismiss was

upheld. There was no consideration made by the Respondent of a lesser sanction that could have been applied and the progressive stages of their own Disciplinary procedure was completelydisregardedinthiscase.

Mr. Brennan was unfairly dismissed without minimum notice.

Legal Arguments

Section 6(1) of the Act states “subject to the provisions of this section, the dismissal of the employee shall be deemed for the purpose of this Act to be an unfair dismissal unless

having regard to all the circumstances there were substantial grounds justifying the dismissal.”

Section 6(7) provides “without prejudice to the generality of subsection 1 of this section, in determining whether a dismissal is an unfair dismissal, regard may be had, if the Rights Commissioner, the Tribunal or the Circuit Court or as the case may be considers it appropriate to do so –

a) to the reasonableness or otherwise to the conduct (whether by act or omission) of the employer in relation to the dismissal and

 b) to the extent (if any) of the compliance or failure to comply with the employer in relation to the employee, in relation to the procedures referred to in section 14(1) of this Act, with the provisions of any Code of Practice referred to.”

In Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following:

b.      [The complainant] …. should state the complaint, factually clearly and fairly without any innuendo or hidden inference or conclusion;

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

d.      The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered;

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

In Concepta Brebner v Clann Mor Residential and Respite Limited UD1613/2014, the Court stated:

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

On page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC 1996), the Tribunal stated:

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

In Governor and Company of the Bank of Ireland (plaintiff) v James Reilly (defendant) it was found:

“The dismissal of the defendant was unreasonable and disproportionate and could not be regarded as falling within the range of reasonable responses of a reasonable employer to the conduct in issue. In short, there is no evidence that the bank suffered any loss, damage or detriment whatsoever as a result of the conduct complained of.”

In Coughlan v DHL, the Labour Court found the dismissal was unfair and one of the reasons cited was that the company had failed to consider any alternative sanctions other than dismissal.

In Smurfit Kappa V Folan the Labour Court said “In determining that the actions of the Complainant were gross misconduct, the Investigator overstepped his role, which is to

establish facts. This is undoubtedly prejudicial to the consideration by the disciplinary decision maker. It goes beyond inappropriateness. It is an unacceptable flaw in the entire process.”

Union Position on behalf of Mr Brennan

It is Mr. Brennan’s contention that he was unfairly dismissed without notice on 11th July 2022.

The procedures followed by the Respondent were unfair and in breach of Mr. Brennan’s rights to natural justice.

·        The Investigation procedure was flawed from the outset, rendering the outcome flawed.

·        The Investigation was not conducted in line with an agreed terms of reference.

·        There was no formal complaint from the client Dublin Bus, and in the case that a complaint was made it was not provided to Mr. Brennan.

·        There was no formal complaint from the other party involved in the incident.

·        The Investigation was not conducted thoroughly and there were no statements taken from key parties including local management, the person who took the statements Mr. Mahon, the first aiders.

·        The details of the incident were nor thoroughly probed nor was the wording of the comments made by Mr. Brennan clearly stated or determined as fact.

It is noted that in the investigation outcome letter, the Investigator finds that this is a matter of gross misconduct. This is outside the remit of any Investigator. An investigation, as has been shown through the Courts, as in Smurfit Kappa V Folan is only a fact-finding mission. It is not open to the investigator to make a finding of gross misconduct. Therefore, the procedure was already flawed and tainted from the outset.

Proportionality of sanction

·        The sanction of dismissal is grossly disproportionate to the offence in this case.

·        There was no consideration given by the Disciplinary Officer of a lesser sanction and it is not documented in the correspondence that a lesser sanction was considered at the disciplinary meeting. There is no clear explanation given in the dismissal letters as to why and how the decision to dismiss was made.

·        In order for a dismissal to be fair the decision must be proportionate. The test is whether the proposed sanction is within the range of responses that a reasonable

employer in the same circumstances could impose. In this case Mr. Brennan had over 20 years unblemished service and no previous disciplinary issues on his file. He

admitted to making an inappropriate comment, but the decision to dismiss is severe, disproportionate and unreasonable in all of the circumstances.

·        The Respondent had a range of lesser sanctions in their own Disciplinary policy open to them had they found through a fair process that the incident warranted disciplinary action. Instead, they acted unfairly and unreasonably and summarily dismissed Mr. Brennan without notice.

We are seeking that Mr. Brennan would be compensated as per section 7c of the Unfair Dismissals legislation. Mr. Brennan earned €455 per week gross pay and was dismissed on 11th July 2022.

Mr. Brennan has been seeking alternative work but is currently out of work. Mr. Brennan will provide evidence to the WRC of his efforts to mitigate his loss of earnings.

We are also seeking that Mr. Brennan be paid 8 weeks’ notice under the Minimum Notice legislation, as he over 20 years unbroken service on the Broadstone and had been working with the Respondent since 2015.

We respectfully request that you find in our member’s favour and find that the dismissal was procedurally and substantively unfair in all of the circumstances.

CA – 00052941 – 001.

The 1977 Act uses the term ‘conduct’, not ‘misconduct’. The phrase need not mean anything that would amount to ‘misconduct’ in the ordinary sense. The conduct must, however, refer to actions of such a nature, whether done within the course of employment or outside thereof, that reflect in some way on the employer / employee relationship. As the term is not legally defined, the employee’s conduct is a matter of fact to be determined by the Workplace Relations Commission. An employee may be dismissed for gross misconduct, for a single breach of discipline or for misconduct consisting of a series of acts and following a series of warnings / suspensions.

The High Court has summarised the legal framework governing conduct-based dismissals under the Unfair Dismissals Acts in the following terms: (JVC Europe Ltd v Panisi [2011] IEHC 279, [2012] ELR 70 at para 5, p74)

‘The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal’

Gross misconduct has recently been described by the Workplace Relations Commission as being at the zenith of possible charges relating to a disciplinary procedure (A security guard supervisor v A security company, ADJ – 00003427 (30TH March 2017)); similarly the Labour Court in a 2016 determination referred to summary dismissal as being ‘the nuclear weapon of the employer’s arsenal of disciplinary sanctions’. The Employment Appeals Tribunal in Lennon v Bredon (M160/ 1978) referred to series misconduct in the following terms:

‘We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category’.

An employer’s honest belief will be of influence. In one of its final ‘legacy case’ determinations prior to the establishment of the Workplace Relations Commission, the Employment Appeals Tribunal held:

‘What is required of the reasonable employer is to show s/he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate’ (Abdullah v Tesco Ireland plc UD 1034/2014, citing Noritake (Irl) Ltd v Kenna UD 88/1983 and Martin v Audio Video Services Centre Ltd UD 617/1991).

The High Court has provided a list of ‘premises’ which must be established to support an employer’s decision to terminate employment for misconduct in Frizelle v New Ross Credit Union Ltd[1997] IEHC 137.

1.      The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

2.      Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly, and fairly without any innuendo or hidden inference or conclusion.

3.      The employee should be interviewed and his or her version noted and furnished to a deciding authority contemporaneously with the complaint and again without comment.

4.      The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

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

I note that the representative for the complainant has cited this case in her submission.

The Respondent conducted an investigation and the outcome found that the Complainant’s comments fell under the definition of ‘unwelcome sexual comments and jokes’ this behaviour was therefore deemed to be gross misconduct. Having heard the comments made by the Complainant I cannot disagree with the Respondent and conclude that any reasonable employer would have dismissed the complainant.

Turning to the investigation the representative for the complainant has stated:

The procedures followed by the Respondent were unfair and in breach of the complainant’s rights to natural justice.

·        The Investigation procedure was flawed from the outset, rendering the outcome flawed.

·        The Investigation was not conducted in line with an agreed term of reference.

·        There was no formal complaint from the client, and in the case that a complaint was made it was not provided to the complainant.

·        There was no formal complaint from the other party involved in the incident.

·        The Investigation was not conducted thoroughly and there were no statements taken from key parties including local management, the person who took the initial statements or the first aiders.

·        The details of the incident were nor thoroughly probed nor was the wording of the comments made by the Complainant clearly stated or determined as fact.

It is noted that in the investigation outcome letter, the Investigator finds that this is a matter of gross misconduct. This is outside the remit of any Investigator. Aninvestigation, as has been shown through the Courts, as in Smurfit Kappa V Folan is only a fact-finding mission. It is not open to the investigator to make a finding of gross misconduct. Therefore, the procedure was already flawed and tainted from the outset.

On the substantive issue I conclude that dismissal was the correct outcome. On the procedural issue the Respondent has conducted a flawed investigation and the comments made by the complainant’s representative cannot be overlooked.

I now conclude that the complainant’s dismissal was unfair however I also conclude that the complainant contributed 75% to his own dismissal.

In relation to mitigation of loss the complainant informed the hearing that he had attended a jobs club with Social Welfare and had also attended an interview with Intreo (Public Employment Service in Ireland). He had no proof of having attended any job interviews, his efforts to mitigate his loss I would consider as being poor.

I now order the Respondent to pay compensation of 10 weeks pay to the Complainant, this figure is reduced by 75% leaving a nett compensation payment of 2.5 weeks gross pay. From the figures supplied by the Complainant this amounts to €1,137.75.

This payment should be made within 42 days from the date of this decision.

CA – 00052941 – 002 – Complaint submitted under the Minimum Notice and Terms of Employment Act, 1973.

This was a dismissal for serious misconduct and no notice payment is warranted. This complaint is not well founded.

I now conclude that the complainant’s dismissal was unfair however I also conclude that the complainant contributed 75% to his own dismissal.

I now order the Respondent to pay compensation of 10 weeks’ pay to the Complainant, this figure is reduced by 75% leaving a nett compensation payment of 2.5 weeks gross pay. From the figures supplied by the Complainant this amounts to €1,137.75.

This payment should be made within 42 days from the date of this decision.

CA – 00052941 – 002 – Complaint submitted under the Minimum Notice and Terms of Employment Act, 1973.

This was a dismissal for serious misconduct and no notice payment is warranted. This complaint is not well founded.

Unfair Dismissals Act, 1977; Minimum Notice and Terms of Employment Act, 1973.