Complainant

Respondent

Anonymised Parties

Platform Experience Associate

A Consultancy Company

Representatives

Mr C McGovern BL instructed by Ms T Hosey Solicitor  of Crushell & Co

Ms R Mallon BL instructed by Ms J  Bielenberg  of Mason Hayes & Curran LLP

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-00053271-001

14/10/2022

The issue in contention concerns the alleged Unfair Dismissal of the Complainant, a Platform Experience Associate (hereafter for convenience a PEA) from a Consultancy Company on the basis of breaching the Respondent “Respecting the Individual Policy” on grounds of alleged sexual harassment.

The employment began on the 4th November 2019 and ended on the 27th September 2022.

The rate of pay was stated to be €29,650 per annum for a standard week.

The Complainant gave a lengthy Oral testimony, supported by a Written Submission. Mr C McGovern BL was the chief spokesperson.

In summary the Complainant argued that he had been the victim of a pre-ordained racially tainted process to exit him from the Respondent. As the Process of Investigation and Disciplinary Interviews had progressed this had become more apparent.

He had always been an exemplary worker with a completely unblemished work record. He had offered, on numerous occasions, to apologise to the person (Ms X) who lodged the Harassment complaint. She had completely misunderstood the situation. He was over twenty years her senior and had simply tried to encourage her and offer support when she had experienced some significant personal difficulties.

Mr McGovern BL stated that the quality of the Investigation / disciplinary process was seriously flawed, the interviewing and selection of witness appeared to be, at best, arbitrary and cross examination by the Complainant was not allowed. The question of CCTV was not properly followed up. The Complainant listed the names of staff members who he felt could have assisted his case but were not interviewed. Mr McGovern BL indicted that “hearsay” from a select few witnesses had been elevated to the level of Gospel. Natural justice was seriously compromised.

The Complainant had raised the Racial issue at the final Appeal Hearing on the 4th and 9th of November 2022 as it was then clear to him that a “racist” agenda was being pursued against him. A particular Manager, Ms D, was identified as being the instigator of the Respondent Racist tactic and it was stated that she, Ms D, had coerced and coached Ms X to make the complaint. It was alleged that she had a long-standing animosity towards the Complainant.

Case Law cited in support by Mr McGovern BL was the Amended Equal Treatment Directive of 2002/73/EC3 to support the view that Sexual Harassment as defined in EU law had not taken place in this case. Likewise, the Irish Employment Equality (Code of Practice) (Harassment) Order of 2012 could not be “shoehorned” to support the Respondent case.

In relation to procedural fairness Hennessey v Read and Write Shop UD 192/1978 together with Frizell v New ross Credit Union [1997] IEHC137 in support of the procedural fairness or lack of same arguments by Mr McGovern BL. In the same context AIB plc v Purcell [2012] ELR 189 was cited.

In final summary the Complainant, supported by Mr McGovern BL, maintained that he had been the victim of a Racist series of events and furthermore that his Dismissal was completely procedurally Unfair.

The Respondent presented Oral testimony from a number of Managers which was supported by a Written Submission. Ms R Mallon BL was the principal spokesperson.

A history of the incidents leading to the Complaint was presented. The initial incident was an interaction of the 13t June/14th 2022 between the Complainant and a Ms X.

 Ms X’s statement was presented in evidence. A complaint of Breaching the Company “Respect” policy was made to Mr G, the Team Leader, who, in view of the allegations, felt that he had to immediately suspend the Complainant and initiate a full investigation. This was undertaken by Ms W from the HR Office.  She interviewed the Complainant, Ms X and two witnesses. Arising from this, she, Ms W passed her Report to an Outcome Manager, Ms M, who decided to initiate a Disciplinary process.  The Disciplinary Hearing took place on the 18th August 2022 with the result communicated to the Complainant on the 30th August 2022.

The Outcome was to Dismiss the Complainant. This decision was appealed. Appeal hearings took place on the 4th and 9th of November 2022. The outcome was communicated to the Complainant on the 13th January 2023 confirming his dismissal.

All proper procedures were followed, witness interview notes and documents were exchanged. The Complainant was offered the opportunity for Representation. Ms Mallon BL noted that the Complainant had never procedurally challenged the Process as Unfair against himself, at any stage prior to his Appeal.

At all stages of the Process the Respondent maintained detailed and extensive written evidence which was shared with the Complainant.  Significant Oral Testimony was given by Managers Ms A, Mr G and Mr T.

The issue of Sexual harassment is now accepted in Law and Practice to be the effects /impact on the individual making the Complaint, Ms X, in this case. The Respondent was satisfied that she had suffered abuse, in breach of detailed Company Dignity and “Respecting the Individual Policies.” Dismissal of the Complainant was a regrettable but necessary outcome.

Proper procedures had been followed, the Dismissal was “Proportionate” and in the Band of Reasonableness. Any alleged procedure shortfalls alleged by the Complainant were of little significance.

Extensive Case law was cited to support these points.  Cases noted were Noritake (Irl) Ltd v Kenna UD88/1983, Allied Irish banks plc v Purcell [2012] 23 ELR 189 and Senior men’s Clothing Salesman v a Clothes Retailer ADJ 16258 among others.

In oral Evidence and cross examination, the issue of the alleged Racist agenda of the Respondent was examined in detail. Evidence from Mr T, a Senior Manager, who chaired the Final Appeal Hearings was given and cross examined by Mr McGovern BL. He had gone to some difficulty to fully investigate this matter and the allegations made against Manager Ms D but was unable to establish any evidence. He had taken some considerable time to finalise his decision which was to uphold the Dismissal.

In final summary the Respondent pointed out that they had carried out an extensive investigation, Disciplinary Hearing and a detailed Appeal hearing. The Respondent was a major multinational with extensive Staff Handbooks and detailed procedures. The staff involved were experienced Managers.

Proper procedures had been followed, the Dismissal was “Proportionate” and in the Band of Reasonableness. Any alleged procedure shortfalls alleged by the Complaint were not of such substance as to alter the outcome.

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice. An objective Adjudication evaluation has to take place on this ground. An extensive body of Legal precedent, at all levels of the Legal System reinforces this view.

Most commentators refer as a guideline to Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 where Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“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 version noted and furnished to the 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 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.

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

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:2 The Role of the Adjudicator

An additional key and supporting point is also made regarding the role of the Adjudicator. Extensive Legal authority is always cited regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case and deciding a different outcome.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

Accordingly in the case in hand the key question is whether or not Natural Justice was followed as far as possible in all matters and the ultimate decision to dismiss was in the “Band of Reasionableness”.

To answer these questions, it is necessary to evaluate the oral testimony provided and the supporting Written Documentation.

3:3        Review of the Evidence presented.

3:3:1      Documentary and basic Procedural matters

Extensive documentary materials were presented in evidence by both Parties. It was clear from an Adjudication point of view that all documents were carefully written and procedurally correct. Minute of meetings were extensive and appeared accurate. All materials were circulated to all parties without any obvious flaws.

The Respondent was operating in the context of a professional suite of HR/Grievance /Dignity/Respect Policies Procedures that were of a high standard. The Respect the Individual Policy was noted by the Adjudicator as being detailed and professional.

In terms of Natural Justice, it is hard to see any faults here although the Complainant queried the selection of witnesses that were interviewed and the absence of CCTV reviews. In Oral testimony the Respondents stated that the selected Witnesses were the critical parties with actual involvement on the 12/13th June 2022. The Complainant had not objected at the time to these Witnesses. CCTV footage if available (this was unclear) would not have added any significant benefit.

It was important from an Adjudication viewpoint to note that the Complainant was actively involved at all stages of the process. It appeared that any reasonable procedural request from his side would have been facilitated. He choose not to have Representation.

Mr McGovern’s arguments regarding “Hearsay” being treated as “Gospel” have to be seen in the context that the Witnesses interviewed gave statements and were centrally involved. To dismiss their evidence as “Hearsay” would be too strong a view is the Adjudication view.

3:3:2       Oral Testimony – Arguments for and against – The “conspiracy” allegations.

A key issue here was the fact that the Complainant changed his arguments as the case progressed internally eventually basing his case on a, for want of better words, an alleged “Racial Conspiracy” by named Managers, principally Ms D, to malignly remove him from the Workplace. The Complainant in his Oral Testimony and Written Submission had initially argued that he had simply taken an almost “Paternal” approach to Ms X who was upset following a relationship break up. This had been completely misunderstood by Ms X.

In this context the Final Appeal Hearings were crucial to deciding on the “Racist Conspiracy” arguments in this case. In the meetings of the 4th and the 9th November the allegation of a “Hate” environment was discussed. Reading the minutes carefully and hearing the Oral Testimony from all sides it was hard to see an objective basis for this allegation. Mr McGovern BL actively cross examined, Mr T, the Senor Manager who chaired the Appel Hearings on this point.  Mr T, was an experienced Senior Manager, who in the Adjudicator’s view gave credible evidence to support the view that no such conspiracy existed.

It was also noteworthy from an Adjudication point of view that in cross examination the Complainant was at considerable difficulty to explain issues of fact raised by Ms Mallon BL for the Respondents, especially in regard to his efforts at mitigation. Ms Mallon advanced the argument that the credibility of the Oral Evidence (at all stages) from the Complainant was an issue of concern.

3:3:3        The “Proportionality” Arguments. The “Band of Reasonableness.”

There was no doubt that the Complainant was dismissed for breaching the Respondent company Procedure 1001 “Respecting the Individual”.

Clause 2 is relevant.

“What matters when evaluating disrespectful behaviour or harassment is how the behaviour is reasonably received by the impacted individual, not whether it was intentional. If it is reasonably perceived as disrespectful or harassing .it is prohibited by (Respondent) Company”

This clause is broad in its range and the definition of what is “Reasonably perceived” has to be considered carefully.

It is worth quoting Mr Justice Flood again (Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137)

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.

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

The incidents of the 12/13 June 2022 were investigated fully. This point is repeatedly cited in legal precedents – Hennessy v Read, and Wite Shop Ltd UD 192/1978 is often quoted - the nature of the employer inquiry and the nature of the employer’s conclusions following the inquiry are highlighted as key factors for a Tribunal or Adjudicator in determining if a decision to dismiss is “proportionate.”

In this case it was touched upon in oral testimony from the Complainant that he felt that there were other Employer options available short of dismissal. It was suggested that he could have been transferred to another location, suspended without pay for a period or other less severe actions.

The Respondent, Mr T, indicated that these had been considered but were not realistic in the situation.

In Berber v Dunnes Stores Ltd [2009] ELR 61 Mr justice Finnegan at point 73 reflected on the issue of lesser penalties than dismissal described as a “Draconian measure”.

The issues of the 12/13 June 2022 were serious and supported by evidence. However, the Adjudication question is one of considering did they merit a man of considerable employment service losing his employment with the perceived extremely negative miasma of Sexual Harassment for ever to be associated with him.

The Labour Court has often reflected on this situation. Numerous cases can be cited.

In a Worker v. A Garage Proprietor, EE02/1985, ‘

Freedom from sexual harassment is a condition of work which an employee from either sex is entitled to expect’.

The issue of the age differential between the Parties is also noted by the Labour Court in Quilty v MBBC Foods Ltd EDA2128. In the case in hand there was an age gap of some 20 years between the Parties. An older more experienced employee such as the Complainant is naturally expected to be more vigilant is his behaviours particularly with juniors of the opposite or differing sexual outlook.

The Respondent is a major multiethnic employer of a large range of staff. The Staff Policies are extensive and clear cut in the area of dignity at work. As the Labour Court has noted in numerous cases the existence of a Policy has to be supported by a vigorous enforcement. In the Oral Testimony from the Respondent Manager, Mr T, (The Appeal Chairperson) this point was clear. A lesser sanction would not have been a proper Management response in his view. He had carefully considered other options. To have allowed the Complainant to remain at work in the Organisation, even if severely sanctioned, would not have been viable. Regrettably ending the employment was the only course open.

Taking into account the considerable body of Labour Court precedent and general employer decisions recorded therein, the Adjudication view has to be that the Dismissal in this case, while traumatic for the employee, has to be seen to fall within the Band of Reasonableness.

3:4        Adjudication Summary Conclusions

In summary the Adjudication conclusion have to be that

·        Natural Justice was observed, to a reasonable level, in all procedures and investigations.

·        The Complainant defence of a “Racist Conspiracy” against him was not proven or substantiated in any way.

·        The Dismissal, while a severe penalty for the Complainant, is within the Band of Reasonableness for the Respondent Employer and the Industry.

Accordingly, the complaint for unfair Dismissal cannot be substantiated. It fails.

Unfair Dismissal, Sexual harassment, Reasonableness of Decision.