Worker

Employer

Anonymised Parties

A Production Operator

A Technology Company

Representatives

SIPTU

Mr. David Pearson, Solicitor of JW O’Donovan Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003570

17/12/2024

The Worker was the subject of a finding of gross misconduct by the Employer, following an investigation and a disciplinary hearing. The penalty imposed was two weeks’ unpaid suspension, and a final written warning which was to be in force for twelve months (and then to be expunged). It was common case that no additional penalties were imposed during the twelve-month period, such as ineligibility for promotion, bonuses, pay rises etc., and that the Worker received a pay-rise in line with everybody else during the time his written warning was/is live. An appeal was lodged by the union with the Employer, and was heard. The original findings and penalties were upheld. The Worker then lodged a case with the WRC, under s. 13 of the Industrial Relations Act 1969.

The factual background, which is common case, is that the male Irish Worker held up a sign to a male Italian worker, on the manufacturing line, bearing the words ‘Grande Tete’(sic). The Employer’s case is that the sign – which it is common case was in Italian - translates as ‘big boobs’ or ‘big tits’ and that it related to a new female co-worker on the same line that day. It is the Worker’s case that the sign meant ‘great friend’ and pertained to the male Italian worker, not anybody else; and that he wished to communicate to his Italian co-worker, in a light-hearted manner, that he was his ‘great friend.’

The matter was reported by two male co-workers – the person to whom the sign was held up and another person also on the line, to the supervisor. The Worker was put on paid suspension while the matter was being investigated. The Worker was represented by his union throughout.

An investigation was conducted, then a disciplinary hearing was convened. A finding of gross misconduct was made against the Worker. A penalty less than dismissal was imposed by the Employer, taking into account the Worker’s prior clean disciplinary record of many years’ standing, and an apology which was proffered by the Worker to the female co-worker identified as being the subject of the sign by the Employer – the meaning and import of the apology is now in dispute between the parties.

It is the Worker’s case that he has engaged in no wrongdoing – he maintains that the sign meant ‘great friend’, that the apology was a courteous act to reassure the female co-worker that there had been no intent behind the sign, and that his apology has been misconstrued as an admission of guilt. He further submits that there is a translation issue and that ‘grandi’ rather than ‘grande’ was the translation relied upon by the Employer, when translating the word ‘big.’ ‘Tette’ in Italian translates as ‘boobs’ or ‘tits.’

The Worker submits that the process engaged in by the Employer was fundamentally flawed in nature, and breached his rights to fair procedure and natural justice.

The union, on behalf of the Worker, submits that there is no complainant in this case, that the Employer’s policy requires it to ‘establish facts’ as per its investigation policy and that it did not do that; that no ‘intent’ has been established on behalf of the Worker, and that no witness/complainant has said they were ‘offended’, that no ‘impact’ has been established by the Employer.

The Employer denies the Worker’s claims, and submits that the process was robust, and in compliance with the Employer’s own policies as well as the requirements of fair procedure and natural justice; that typically in cases of ‘gross misconduct’, no tolerance is shown and a dismissal results, that in this instance, considerable tolerance was shown and a lesser penalty was imposed, in light of the Worker’s work history and the apology which it considered as mitigation. The Employer submits that the penalty imposed falls within the ‘band of reasonableness’ of possible options open to the Employer, and that once the process is in compliance with the procedural requirements, and the penalty falls within the ‘band of reasonableness’, then the WRC has no jurisdiction to substitute its own judgment for that of the Employer.

Summary of the Worker’s written submissions

The Worker has worked for the Employer for the last fourteen (14) years, as a General Operative, with an unblemished record. He is seeking to have the sanction of a final written warning expunged from his record and two weeks unpaid suspension restored to him.

Background

On 21st May 2024, the Worker was working on the assembly line when he raised a sign in the Italian language which read “Grande Tete” to his friend and work colleague VN [an Italian man]. The Worker submits that he understood the wording of the sign meant ‘great friend.’

The Worker had befriended VN who only commenced employment with the Employer three months previously. The Worker would often hold up a sign which read ‘Forza Milan’ to VN, through their interest in football.

There were several witnesses to this sign holding. The Employer alleges that the sign meant ‘big boobs’ in Italian and was directed at a female co-worker who was new on the assembly line. The Worker has denied this allegation.

The manager AB was made aware of the alleged incident, and she retrieved the sign from the bin. It is submitted that the person to whom the Employer claimed the sign referred was not in the room when the sign was raised, nor did she make a formal complaint.

On May 22nd 2024, the Worker was issued with two letters by manager JF.

·        The first letter dated 22nd May 2024 informed the Worker he was invited to an investigation hearing on 28th May 2024. The Employer decided to investigate under its Bullying & Harassment Policy and Disciplinary Policy. The Worker had an issue in locating these policies and was unable to familiarise himself before the meeting.

·        The company decided to investigate the following allegation of gross misconduct: “You allegedly held up a piece of paper/sign in the direction of a colleague that may have contained comments of an offensive nature”

·        The second letter, also dated 22nd May 2024, informed the Worker that he was placed on paid suspension pending investigation. [The two letters are submitted at Appendix 2].

On 7th June, the Worker was issued with a letter to attend the Investigation outcome meeting for 12th June 2024. He attended the meeting with his Shop Steward. At this meeting, the Worker got a copy of the investigation report and his witness’s statement. It was recommended that this matter would proceed to a disciplinary meeting. [Appendix 3].

On 27th June 2024, the Worker attended a Disciplinary Meeting with BL. [Minutes at Appendix 4.]

On 1st August 2024, the Worker received a letter inviting him to the disciplinary outcome hearing on 7th August 2024. [Appendix 5] In this letter, BL thanks the Worker for attending the meeting on 4th July 2024 – however, this meeting did not take place.

On 7th August 2024, the Worker was issued a letter regarding the outcome of the disciplinary hearing with regard to conduct, which set out he would be placed on two weeks’ unpaid suspension and be issued with a final written warning as an alternative to dismissal. There was also a threat of further sanctions which could be impacted on the Worker as per letter dated 7th August 2024. [Appendix 6] [Adjudication Officer’s Note: It was common case at the hearing that no additional sanctions had been imposed beyond the two weeks’ unpaid suspension, and the final written warning to be in force for twelve (12) months.]

SIPTU appealed the Employer’s sanctions on behalf of the Worker. This appeal hearing took place on 25th September, 2024. The Worker was represented by his union throughout. [Appendix 7]

On 23rd October, 2024, the Appeals Officer upheld the Employer’s decision to sanction the Worker with a two-week unpaid suspension and a final written warning. [Appendix 8].

SIPTU referred the case to the WRC on 17th December 2024.

Union’s Lines of Argument:

The union submits that the  Employer did not consider the Worker’s fourteen (14) years of longstanding, exemplary service and his clean record when he was suspended with pay when issuing  the disciplinary outcome of a final written warning, and two weeks paid suspension with a threat of further sanctions which could be imposed on the Worker. It is submitted that the sanction imposed on the Worker is not fair or proportionate, that it was harsh for a first-time offence for the alleged misconduct.

It is submitted that there were several procedural flaws in the investigation process, calling into question its validity and fairness. The Worker was given the witness notes and the investigation report when he was leaving the meeting, which it is submitted meant he had no time to defend himself. It is submitted that in the Worker’s statements/notes, the notes are detailed with what questions were asked and how the Worker answered them. However, when you look at the witnesses’ statements, there is no clear account of what question the witnesses were asked and how they came to their conclusion; Also, in the notes the answer is in the second or third person not in the first person. It is submitted that leaving out the questions posed makes it impossible for the Worker to challenge whether the question asked to the witnesses were relevant, fair or comprehensive.

It is further submitted that those interviewed with exception of VN do not speak Italian and do not have any knowledge of Italian in order to interpret the sign to mean “big boobs” only that they heard VN saying what it meant and that the answer was a collective perception rather than it being an individual factual testimony. It is submitted that this meant that the investigation should have looked for factual clarity, but instead, the Investigator allowed for the subjective perceptions to dominate, undermining the integrity of its findings.

Failure to examine key evidence: the original sign.

The sign that the Worker wrote was “Grande Tete” in Italian and the Worker believed that it meant “great friend”. The Worker does not speak this language. The Investigator did not use the original sign - there is no mention of the sign, and that he instead relied on witness testimony on what they thought it meant. The Employer did not itself go and translate the spelling that was written down but the spelling they used was “Grandi Tette” - this was interpreted by VN who is an employee of the Employer and who is Italian. This form of spelling was used in the investigation and its interpretation by VN. The spelling is significant as it opens the possibility that VN misread the sign and then misinterpreted the sign meaning. By not reviewing the original sign, JF has missed an important piece of evidence that could have helped the Worker’s defence and showed that the witness’s interpretation was based on assumption rather than facts. It is submitted that when you translate ‘Grande Tete’ from Italian into English, it means Big Head [Adjudication Officer’s Note: This is not correct. The sign was in Italian.]; and, it is submitted, if you translate ‘Grande Tete’ into Italian slang, it means brother, kid or buddy.

It is submitted that the Worker and VN share an interest in football as the Worker would often hold up a sign with the words “Forza Milan” to VN in a friendly banter between them as TD (another employee) and VN confirmed in their statements.

It is submitted that there is no formal complainant and that this represents a major flaw in the investigation process. It is submitted that MB (the colleague to whom it is alleged the sign referred) did not make a complaint as she was not in the room when the sign was raised and only came in after. It is submitted that the Worker was never made aware of who initiated the complaint against him and what specific conduct was deemed inappropriate. It is submitted that this means that the Employer itself rather than an individual is the complainant, and that this lack of clarity denied the Worker the chance to challenge the allegation and help him to prepare a full defence.

Misinterpretation of the Apology

During the investigation, it was noted that the Worker apologised to MB on request of a colleague TD, he apologised but did not understand why he was doing so as the sign was not meant for her. It is submitted that the investigator put undue weight on this apology, seeing it as evidence of misconduct. This is both incorrect and unfair. It is submitted that the apology that the Worker gave was that of a work colleague and not an admission of any wrongdoing, and that the investigator’s reliance on this apology as an indication of guilt is a gross misinterpretation of the facts.

It is submitted that the impact of the disciplinary sanction has resulted in severe consequences for the Worker, both personally and professionally: The implications of misconduct of a sexual nature connotation have damaged his reputation within the company and his relationships with colleagues have been negatively affected. It is submitted that there was a pre-determined belief that the Worker could act inappropriately towards a work colleague contrary to the Worker’s work practice and unblemished work. [Appendix 3]

The disciplinary policy allows for the Employer to give a sanction of a final written warning and unpaid suspension (these options must always be discussed with your People’s Business Partner or Employee Relationship Representative), but it does not allow in the policy that a threat of “over the next 12 months any applications for internal positions, receipt of any bonus, salary increases and promotion may be impacted”, as per page 2 of ‘Outcome of the Disciplinary Hearing’ with regard to conduct, dated 7th August 2024, and signed by BL. [Appendix 8]

Case Law

3.1 The right to fair procedures was outlined in the Supreme Court case of: In re: Haughey (1971) where it was said by O’Dalaigh C.J. at 264 that:

“in proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution of the State, either by its enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party from vindicating these rights.”

This article encompasses a guarantee of fair procedures for all citizens and that a person must be afforded a reasonable means of defending themselves. In the case of the Worker, it is submitted that this would have included:

a.      His interpretation of ‘Grande Tete’ as meaning ‘great friend’ and not the Employer’s applying VN’s ‘Grandi Tette’ as ‘big boobs.’

The High Court case of Shortt V. Royal Liver Assurance Ltd. 28 IEHC 332 observed that the important part about procedural fairness is that the decision-maker, in this case the investigator, must not imperil a fair hearing or a fair result. A procedure does not have to be perfect provided it is not conducted in breach of rights.

It is submitted that the investigator placed undue reliance on the evidence of one individual, VN, and dismissed the evidence of the Worker in the alleged interaction; and that opposes a decision based on the balance of probabilities.

It is contended that the way in which the investigator conducted the investigation, placed huge emphasis on the statement of one individual, and findings related to this which were not based on facts, i.e. the proper spelling of the sign, contravenes the Worker’s right to fair procedures and due process.

In the case of Tesco Ireland V. Laura Gannon UD2114/2010, the Tribunal said:

“In considering the proportionality of the sanction imposed by the appellant, the Tribunal took into account the 8 years unblemished record of the Respondent and the availability of the alternative sanctions to the appellant.”

The Tribunal concluded that the dismissal was disproportionate and amounted to unfair dismissal.

It is submitted that the Respondent failed to investigate properly and never considered anything short of a final written warning in relation to the Worker. It is submitted that that the sanction of a final written warning of a long-standing member of staff who has an unblemished record is unreasonable, disproportionate and unfair.

The Worker cites the case of Tim Marks V. ICTS Ireland LTd. t/a ICTS Ireland UD159/2015, in which it was submitted that the Complainant owned up to his mistake in taking the magazine out of the rubbish bag as he felt it was actual rubbish, and that the Respondent admitted to not carrying out their procedures properly. In that case, the Tribunal held that the Respondent did not fully apply fair and proper procedures in the manner in the internal appeal was conducted, and the procedure was therefore fundamentally flawed. The Tribunal held that the sanction applied was disproportionate, in particular, having regard to the value and signifcance of the property item in dispute and the length of service and good employment record of the Worker in his employment with the Employer.

In this case, the Worker is seeking to have the sanction of a final written warning and his two weeks’ unpaid suspension be removed. He is further seeking compensation for the manner in which he was treated since the investigation began.

It is submitted that:-

-        The Employer breached fair procedure.

-        The Employer acted outside its own policy.

-        The sanction imposed is disproportionate.

Submissions, at the hearing, on behalf of the Worker:-

The Worker’s representative highlighted what he considered to be procedural deficits made by the company. He said that the letter dated June 7th just contains the allegation but that it does not mention harassment; the investigation makes a finding of a potential dignity at work issue. He said there were ‘no complainant documents.’ He said that the witness statements taken from VN were accepted by the Employer.

He said that in terms of the outcome of the disciplinary hearing, the Employer was holding the Worker to account for causing offence but that none of the witnesses say that he caused offence and no complainant documents allege that he caused offence. He submitted that the Employer would have to show that as a matter of procedure, that it was relevant in order to allow the Worker to mount a defence, that the Employer ‘can’t just infer it’ offence, that inference is unfair procedurally. He submitted that it was the Employer who interpreted [the offence], but that none of the witnesses were outlining offence and that sanctioning the Worker for that offence is therefore procedurally unfair.

He submitted that, in this instance, there were complainants who are also witnesses and who are not asked to give written accounts. He emphasised the lack of written record. He submitted that they should have been clearly identified as one or the other (complainants or witnesses) and not both, and submitted they should have been asked what their concern was, but that was never raised. He submitted that things were taken at face value or at their word. He submitted that it was hearsay that they raised complaints and posited a situation in which they may not have done so, but rather the incident came to the attention of management who then acted on it. He said that the company’s policy requires the company to ‘establish facts’ and that it had failed to do so, in how it had conducted this case. He submitted that there had to be ‘harm or intent or some sort of misconducting behaviour that somebody found offensive’, and that ‘when they are not able to establish that, that is unfair.’

Fair Procedures and Compliance with Internal Policy

It was submitted that the procedure was unfair towards the Worker, from start to finish, that the sign he held up was ‘never produced’ although it was acknowledged that the piece of paper is not in dispute. It was submitted that it was not ‘of an offensive nature’, that it ‘only became offensive when they found out what the sign meant.’ It was submitted that the Employer ‘didn’t investigate what the sign meant’, that how it got its own interpretation of what the sign meant was by relying on the translation provided by VN and also doing an online translation – it was submitted that the Worker (or his union) had never seen how the Employer actually got its interpretation of the sign. It was further submitted that there was never any complainant.

The Adjudication Officer, at the hearing, queried this, raising the fact that a complaint can be raised through a variety of avenues – and in this instance, it was not the avenue through which a complaint was raised - and drawing attention to the Safety Health and Welfare at Work Act, and the requirement for an employer to provide a safe place of work.

It was submitted that in respect of health and safety, the requisite responsibility centres on an interpretation of the sign; and that one [a complainant] would have to, as they are going through the investigation, outline that they have a concern, that they should be on record to say that this has had an impact on them (themselves), or that this behaviour is inappropriate or unprofessional. It was submitted that the Employer’s own policy [Appendix 10, second page] sets out that it has an ‘obligation to establish facts.’

It was submitted that the actual sign said: ‘Grande Tete’, and that the union representative ‘didn’t think there is nothing in it to suggest that there is incorrect spelling.’

It was submitted that the complainant’s identity (or complainants’ identities) were not made known during the investigation, that the Worker only became aware of it during the disciplinary hearing.

It was submitted that the Employer relied upon VN’s interpretation of what was being communicated to him, that it was not contextualised as to what that was. It was submitted that the Employer is required to establish facts, not just to establish opinion.

It was submitted that VN was being taken at face value, but that intent of the alleged misconduct has to be established. It was submitted that it was a joke, and that the Worker had previously held up signs saying: ‘Forza Milan’ as a joke. It was submitted that the Worker was trying to get the attention of his friend on the line by holding up the sign ‘Great Friend.’ The Adjudication Officer at the hearing enquired as to the nature of the joke. No explanation was forthcoming, other than to say that the Worker wished to have a light-hearted or humorous interaction with his colleague VN.

It was submitted that the company’s interpretation of the sign was not factually accurate, and that it had failed to ‘establish facts.’ It was submitted that VN has given his interpretation of the note. It was submitted that the Employer had to be factually certain, if it was bringing the allegation of misconduct against the Worker – it was submitted that the company is not able to address that point. It was further submitted that no impact was established by a complainant, and further submitted that there was a possibility that VN was not ever actually a complainant.

Summary of the Employer’s written submissions

The Employer submits that the Worker was issued with a final written warning and was suspended without pay for two weeks following a disciplinary process. These sanctions were imposed after a full investigation and disciplinary hearing into an incident involving the display of a sign bearing the phrase ‘Grande Tete’, which was interpreted by some colleagues as potentially offensive.

It is submitted that the disciplinary hearing manager concluded that the Worker’s actions breached the Employer’s ‘Principles of Business Conduct’ (Respect), constituting misconduct under the Disciplinary Policy. While the Worker stated that the sign was intended as a humorous gesture toward a male colleague, it nonetheless caused offence to others.

The Employer maintains that the disciplinary process was conducted fairly, in accordance with internal policy and the principles of natural justice. The Worker was afforded full procedural rights, including representation and appeal. The sanctions imposed were proportionate and were upheld on appeal. The Employer submitted a book of documents comprising relevant policies, correspondence, witness statements, and records from the investigation, disciplinary hearing, and appeal process.

Investigation

On 22nd May 2024, the Worker was:-

1 . Informed by JF, Production Manager and appointed Investigation Manager, that the Employer had initiated an investigation into an allegation of gross misconduct, and

2.  Issued with a formal notice of suspension confirming that he was being placed on paid leave pending the outcome of the investigation. The notice clarified that the suspension was not disciplinary in nature and did not imply any presumption of wrongdoing.

On 28th May 2024, the investigation meeting took place was attended by the (1) Worker, (2) his SIPTU union representative, (3) the appointed Investigation Manager and (4) EH, ER Business Partner and notetaker. During the meeting, the Worker acknowledged that he had written and displayed a sign but stated that it was intended as a joke for a colleague [the male Italian colleague], and that the meaning of the phrase had been misunderstood.

On 7th June 2024, the Worker was invited to an outcome meeting, during which the Investigation Manager delivered the findings of the investigation. In the accompanying report, the Investigation Manager concluded that, on the balance of probabilities, the Worker’s behaviour was inappropriate for the workplace and could amount to a breach of the Employer’s Respect at Work policy. He recommended that the matter proceed to a disciplinary hearing.

The Employer submits that the investigation was concluded in a fair, impartial, and transparent manner. All relevant evidence – including the sign in question and witness statements – was reviewed thoroughly and shared with the Worker in advance of the disciplinary process.

Disciplinary Hearing and Outcome

On 27th June 2024, the disciplinary hearing took place and was attended by (1) the Worker, (2) his union representative, (3) BL1, the Disciplinary Manager and (4) AB, ER Business Partner and notetaker. The Worker was given the opportunity respond to the allegations. He re-iterated that the sign was intended as a joke directed at his [male, Italian] colleague, and that he believed the phrase ‘Grande Tete’ to mean ‘great friend’ in Italian. He disputed the Employer’s interpretation of the phrase.

On 7th August 2024, the Employer issued its decision in writing. It was concluded that the Worker’s actions breached the Employer’s Principles of Business Conduct (Respect) constituting misconduct under the Disciplinary Policy, and potentially amounting to gross misconduct.

The disciplinary outcome acknowledged that the Worker may have previously engaged in inappropriate humour of a less serious nature, and that he had not been given adequate feedback to understand the seriousness of such behaviour. The Employer also took into account the Worker’s apology and his otherwise clean disciplinary record .

Taking these mitigating factors into account, the Employer imposed a two-week unpaid suspension and issued a Final Written Warning as an alternative to dismissal.

The outcome letter further stated that the Worker would receive feedback and guidance on appropriate workplace behaviour and would be required to complete additional training focused on respect in the workplace, with support provided by the Employer.

The Final Written Warning was to remain active for twelve (12) months and could affect the Worker’s eligibility for internal opportunities bonuses, salary increases, and promotions. The Worker was also informed of his right to appeal the decision by submitting a completed appeal form to Employee Relations.

Appeal

The Worker lodged an appeal against the disciplinary outcome, raising several grounds. He contended that the sanctions imposed – namely, the unpaid suspension and Final Written Warning -  were unfair, citing his previously unblemished record. He also alleged procedural flaws in the investigation, including the absence of terms of reference, inaccuracies in witness statements, inadequate questioning, and a failure to examine key evidence. Additional grounds included the lack of formal complaint, misinterpretation of his apology, flawed interpretation of the phrase on the sign, and the reputational impact of the disciplinary outcome.

On 9th September 2024, the Worker was invited to an appeal meeting and advised of his right to representation and to review the Appeal Policy. The appeal was heard on 25th September 2024 by BL2, Senior Manager in Product Operations. Also in attendance were, (2) the Worker, (3 & 4) his union representatives, (5) PC, ER Business Partner and notetaker.

Following a thorough review of the appeal grounds and all relevant documentation, the outcome was communicated in writing on 23rd October 2024. The appeal decision upheld the original disciplinary outcome, confirming that it was fair, proportionate, and consistent with the Employer’s policies.

In response to the claim that the Worker’s clean disciplinary record had not been considered, the appeal review confirmed that this was explicitly acknowledged and taken into account by the disciplinary manager, BL1, in her decision of 7th August 2024.

Regarding the alleged procedural flaws, BL2 clarified that the Employer’s Disciplinary Policy does not require formal terms of reference for investigations. He noted that the policy provides sufficient procedural clarity and that the Worker was afforded all necessary rights throughout. On the issue of witness statements and questioning, BL2 found no evidence of inaccuracy or inadequacy, noting that the Worker was not present at those meetings and that the documentation accurately reflected the process. As to the original sign, BL2 stated that there was no dispute about its wording; the issue lay in its interpretation, which was thoroughly examined.

Addressing the claim that no formal complaint had been made, BL2 confirmed that the matter was reported by two staff members to a supervisor. Their statements were shared with the Worker, and it was reasonable for the Employer to investigate the matter in accordance with its policies.

On the issue of the apology, BL2 noted that it was treated as a mitigating factor by the disciplinary manager and did not influence the finding of misconduct. He further stated that the outcome would likely have been the same even without the apology.

In relation to the interpretation of the Italian phrase, BL2 acknowledged that the Worker does not speak Italian and had relied on informal sources. However, a native Italian speaker [the person that the sign was held up to] confirmed that the phrase did not mean ‘great friend,’ and this interpretation was supported by online translation tools.

The Worker also raised concerns about the reputational impact of the disciplinary outcome. BL2 emphasised that the process was conducted with strict confidentiality and that there was no evidence of any breach in this regard.

Having considered all grounds raised, BL2 concluded that the disciplinary process was fair and that the original decision should stand. The appeal was therefore not upheld concluding the internal process.

Legal Submissions

The Employer submits that the disciplinary process undertaken in this case was procedurally fair, substantively justified, and proportionate in its outcome. The Worker was afforded all rights under the Employer’s internal policies and the principles of natural justice, including the right to representation, access to evidence, and a full appeal process.

Proportionality of Sanction

The principle of proportionality requires that any disciplinary sanction imposed must fall within the range of reasonable responses available to a reasonable employee.

The Employer cited the EAT case of Bigaignon V. Power Team Electrical Services Ltd. (UD 939/2010), the EAT case of Barry V. Precision Software Ltd. (624/2005) and the EAT case of Looney & Co. Ltd.  V. Donal Looney (UD843/1984); and submits that the sanction imposed in this case – a Final Written Warning and two-week unpaid suspension – was well within the range of reasonable responses. The Worker’s conduct involved a breach of the Employer’s Principles of Business Conduct (Respect) Policy and caused offence to colleagues. The Employer took into account mitigating factors, including the Worker’s clean disciplinary record and his apology, and opted for a sanction short of dismissal.

Fair Procedures and Compliance with Internal Policy

The Solicitor for the Employer emphasised the company’s own policies.

He set out that the Employer is a significant employer with a large number of employees. The Employer’s document called ‘Business Conduct’ sets out how the Employer does business both internally and externally. There are also regular refreshers provided.

He set out some broad, general context in relation to bullying and harassment, and the requirement for respect in the workplace.

The Employer’s harassment and bullying policy (Appendix 10 of the Worker’s booklet) sets out under the heading: ‘Harassment and Discrimination’, as follows:-

‘[The Employer] is dedicated to maintaining a creative, diverse, inclusive, and supportive work environment, and does not tolerate discrimination or harassment of employees or non-employees with whom we have a business, service, or professional relationship. This applies to all interactions where you represent [the Employer], including interactions with employees, customers, suppliers, and applicants for employment. For more information, see the Equal Employment Opportunity Policy and People policies for your region. If you believe you have been harassed or discriminated against, or have witnessed such behaviour, visit Reporting a Concern. We encourage you to report the incident using any avenue with which you feel most comfortable, including your [Employer] manager, People Support, your People Business Partner, or Business Conduct. We also do not tolerate workplace violence of any kind. For more information, see the Workplace Violence Policy.’

And further in relation to the principle of respect:-

‘Respect

Respect is a foundational element of our culture. It is necessary for great collaboration, for great debate, and for our ideas, products, and services to be as great as they can be. We believe a safe, inclusive, and respectful environment is essential to ensure both the quality of our workplace and the success of our business, and that employees must be professional in their interactions with colleagues, customers and third parties. Respect is a shared responsibility, and should be demonstrated every day through actions, interactions, and decisions in the workplace. Respect does not mean that we don’t disagree or debate - it means that when we do so, we do it in a way that does not cause a coworker to feel offended, humiliated, or intimidated.’

He emphasised the parts of the policy which set out: ‘If you feel you have been harassed or bullied, or believe you have witnessed such harassment or bullying…We encourage you to report the incident…’; and further submitted that respect is a foundational principle, that it sits at the heart. While there is collaboration and debate with customers and third parties, respect is a shared responsibility. It does not mean that people don’t disagree or debate, but he submitted, the key piece is ‘offended, humiliated or intimidated.’

The Solicitor for the Employer also set out that the Employer’s policy on harassment also prohibits harassment and sexual harassment of any kind, including ‘slurs, jokes, statements, written or electronic communication, pictures, drawings, posters, cartoons, and gestures. Examples of prohibited sexual harassment include but are not limited to unwelcome sexual advances, requests for sexual favours, and other verbal, visual, or physical acts of a sexual nature. An employee may be found to have harassed — whether sexually or based on any protected characteristics — or bullied an individual, even if that was not the intent. Harassment and bullying are not about individual intent, but how the behaviour affects another person. Any such behaviour, whether isolated or repeated, may be subject to disciplinary action up to and including termination of employment.’

He said that all of the Employer’s policies are available online.

Summary Dismissal & Gross Misconduct: He said that the policy sets out that [the Employer] ‘reserves the right to terminate employment immediately, without notice or payment in lieu of notice, in the event of gross misconduct.’ It further sets out common examples of acts of gross misconduct including: ‘Any act of discrimination or harassment of colleagues, customers, or any other person’ and ‘Disorderly conduct including verbal or physical assault on another employee or customer, fighting at work, swearing, shouting, bullying, threatening behaviour, and other actions of an offensive nature.’

In relation to the investigation and disciplinary policy, he said that it was a three-step policy.  He quoted the policy, which set out in relation to the ‘Investigation’ stage that:- ‘Disciplinary action is not considered at an investigatory meeting; the meeting is intended only to establish the facts of the case. If it becomes apparent that disciplinary action may be needed, then the case should be progressed to a formal disciplinary hearing. The investigation may include interviewing witnesses. Notes should be taken of all interviews. All evidence, including notes, should be provided to the employee prior to any disciplinary hearing.’

He emphasised ‘May’ and ‘Prior’ in the policy: ‘The investigation may include interviewing witnesses. Notes should be taken of all interviews. All evidence, including notes, should be provided to the employee prior to any disciplinary hearing.’ He submitted that that had in fact being done – that the Worker received the notes prior to the disciplinary stage (at the end of the investigation meeting); and that the union’s submission that there was a deficit in that regard, was not correct.

Closing submission by Solicitor for the Employer, Mr. David Pearson

1.      The Worker was suspended with pay. The suspension letter, dated May 22nd 2024, is exhibited at Page 51 of the Employer’s book of documents. The allegation was: ‘As we discussed, [the Employer] is investigating concerns regarding an alleged displaying of offensive material which could amount to a breach of [the Employer’s] policies.’

2.      In terms of the Investigation, the Worker knew what he was being investigated for, he was sent the sign. It was removed from the bin.

3.      He was subsequently invited to a disciplinary meeting, exhibited at Page 53 of the Employer’s book of documents. The letter, also dated May 22nd, 2024, set out: ‘I am writing to inform you that [the Employer] has decided it is necessary to conduct an investigation into the following allegation of gross misconduct.

·        You allegedly held up a piece of paper/sign in the direction of a colleague that may have contained comments of an offensive nature.’

It further set out: ‘The allegations being investigated are of a serious nature and shall be                 investigated under the following policies: [The Employer’s] Harassment & Bullying Policy and [the Employer’s] Disciplinary Policy. If the investigation determines that it is reasonable to believe there has been a breach of policy, you may face disciplinary action up to and including dismissal.’

4.      He was then issued with the ‘Invite to Investigation Outcome Meeting’ dated June 7th, 2024, exhibited at Page 63 of the Employer’s booklet of documents.

Addressing the point raised in relation to ‘intent’, it was denied that was the standard/requirement, and submitted that ‘effect’ was sufficient. However, it was further submitted that in the investigation outcome meeting, the Worker acknowledges intending to engage in a humorous interaction (which constitutes intent).

It was submitted that this workplace is a manufacturing facility, and that by and large, production line are robust places of work. It was submitted that the fact of it being reported to management indicated that it was regarded as being unacceptable in the context of a workplace and respect. The requirements of the Safety Health and Welfare at Work Act (SHAW) 2005 were highlighted, along with the principles of respect in the workplace, and not harassing people. Solicitor for the Employer, Mr. Pearson submitted that the sign meant ‘big boobs’, and that the Employer was entitled to take that interpretation.

In relation to the disciplinary penalty imposed, it was submitted that, in general, when there is a finding of gross misconduct, dismissal is generally the outcome. In this instance, the Employer went back to the policy itself and imposed a two-week period of suspension without pay, which took into account the Worker’s length of service, and a final written warning. The Solicitor for the Employer said that the written warning ran for a period of twelve (12) months from 7/8/24 and that it was to then be expunged from the Worker’s record – it was due to run out a week after the WRC hearing. He emphasised that the Worker had received a pay rise in line with everybody else during the relevant time-period. He said that when the investigation was set out, there was a copy of the sign attached to it. He submitted that the  Worker had sight of that from the beginning.

He submitted that the contents of the sign was ‘offensive in nature’, it was identified as such by two friends, such that it was brought to the attention of management. He submitted that management has a responsibility to investigate such a complaint. He said that if you google (translate) ‘great friend’, it produces ‘grande amico’ – that is nowhere near ‘grande te[t]te.’ He said that the relevant point in relation to employees on the line is the effect it has on them, that it is not about intent. It is about the effect it has on them. He said they were sufficiently concerned that they brought it to management. He submitted that the sign meant ‘big boobs.’

He submitted that the normal principles of natural justice were all complied with – there was an investigation meeting, that the Worker was represented initially by his SIPTU Shop Steward. Then, as it went to the process, he was represented by two union representatives (the same ones in attendance at the WRC hearing). He submitted that the appeal document was very considered, in nature, that the points were discussed at length by the person conducting the appeal, who gave a very considered view on all of the points. He submitted that the Employer dealt with it appropriately and reasonably, that the jurisdiction of the WRC in an IR complaint is to examine the procedural aspect; and he submitted that the disciplinary penalty imposed was within the reasonable range. 

It was submitted that ordinarily, in such circumstances, there would be a zero tolerance policy, and that in this instance, a significant level of tolerance shown which took account of the Worker’s long service and clean disciplinary record. He submitted that he really did not see what the criticism of the Employer was, at this stage.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I find that there is no reality to the Worker’s complaint.

I do not accept any of the procedural arguments raised. It is worth adding that the procedural standard required in any procedure is not perfection, rather it has to be such that it does not imperil a fair hearing or a fair process. In this instance, what is being examined is an internal disciplinary process. It is not a criminal trial – the standards applicable are those applicable to an internal disciplinary process – S.I. 146/2000 is a good guide, in that regard. In this instance, the Employer also has comprehensive policies. I am also guided by the Supreme Court in McKelvey V. Iarnrod Éireann/Irish Rail [2019] IESC 79, when examining this case. The Employer complied with both its own process and the requirements of fair procedures and natural justice.

I do not accept that there was no complainant, nor that the Employer was not entitled to – indeed, required to – investigate. The Employer has an obligation to provide a safe place of work, and to uphold its policies in relation to bullying and harassment – in this instance to events which also have a gendered and equality aspect. Nothing turns on the type of quibbling raised.

I find that the Worker was provided with a copy of the sign (which he accepts he held up in the direction of his colleague VN), i.e. that he at all times knew what this pertained to.

I find that the Worker was provided with all relevant documentation at the end of the investigation meeting, i.e. prior to the disciplinary portion of the process, in line with the Employer’s policies, as set out.

I do not accept the argument raised in relation to ‘intent’. There is no dispute between the parties as to the sign which was raised – a photocopy of it was submitted as an exhibit, and it was acknowledged by both parties (i.e. it was common case) that that was the sign which was raised by the Worker. I further accept the submission by the Solicitor for the Employer highlighting that it was acknowledged that the Worker had intended to have a humorous interaction with his co-worker VN, using the sign it is an agreed fact he raised, and that the Employer is entitled to take the view that the sign meant ‘big boobs.’ In any event, I find that ‘intent’ is not the required standard in relation to such matters, or as set out in the Employer’s policies (which speaks to offence, humiliation and intimidation) – again, this is not a criminal trial. For completeness, it is worth adding that some materials can simply be offensive, by nature, and thus, inappropriate in a workplace. In this instance, both the content and the communication were inappropriate and offensive in nature.

I do not accept the arguments as to ‘interpretation’ in circumstances where the person to whom the sign was raised (male Italian VN) was asked for his understanding of what was being communicated to him, i.e. he was party to  a two-party communication, and he gave his recollection and understanding of the communication.

I accept the submission made by the Solicitor for the Employer that a production line in a manufacturing facility is, by and large, a robust place of work; and, in that context, the fact of it being reported to management is significant. In this instance, it was reported by (or came to the attention of management via) two male co-workers. It was regarded as being unacceptable in the context of a workplace and the principle of respect, and not harassing people. That is also consistent with the requirements of the Safety Health and Welfare at Work Act 2005.

I find that the Employer is entitled to take the view what was being communicated was ‘big boobs’ or ‘big tits’ and proceed accordingly procedurally, which it did. I find that the approach taken by the Employer is in line with the procedural requirements of due process and natural justice.

I find that the penalty imposed falls within the ‘band of reasonableness’ of the possible approaches open to it. I accept the submission made on behalf of the Employer that considerable tolerance was shown, and that the Worker’s clean disciplinary record of many years standing was taken into account; and further that the apology proffered (since disputed) was viewed, and weighed by the Employer, in his favour, as mitigation. The standard for proportionality is set out by the Supreme Court in Meadows V. Minister for Justice Equality and Law Reform [2010] IESC 3.

I find that no evidence was adduced in support of the submission that there had been an impact on the Worker’s reputation. There is nothing to indicate that the confidentiality of the process was breached, for example.

I do not recommend for the Worker.

Offensive Sign; Investigation; Internal Disciplinary Process; S.I. 146/2000; McKelvey V. Iarnrod Éireann/Irish Rail [2019] IESC 79; Proportionality; Meadows V. Minister for Justice Equality and Law Reform [2010] IESC 3; Intent; Effect; Inappropriate Communication;