UDD2336

1. Appeal Of Adjudication Officer Decision No ADJ-00010953 CA-00014201-001

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 23 January 2019 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 02 August 2023. The following is the Determination of the Court.

DETERMINATION:

This matter comes before the Court as an appeal by Pat Donegan (the Appellant) against a decision of an Adjudication Officer in his complaint against Laois County Council (the Respondent) made under the Unfair Dismissals Act, 1977 (the Act).

The Adjudication Officer decided that the complaint was not well founded.

Background

The Appellant was employed as a plumber by the Respondent from 2007 until his dismissal in June 2017. That dismissal followed an occurrence on 19^th October 2016 which resulted in the placement of the Appellant on ‘administrative leave’ with effect from 31^st October 2016 and ultimately his dismissal following an investigation and a disciplinary process.

The hearing of this matter by this Court has been delayed for a matter of years at the request of the Appellant who, having made an appeal to this Court, was pursuing a remedy through another forum for a very considerable period of time.

The fact of dismissal is not in dispute.

Summary submission of the Respondent.

The Appellant was dismissed on foot of an investigation and disciplinary process into matters related to an incident which occurred on 19^th October 2016. The nature of the incident was serious and ultimately resulted in dismissal of the Appellant for serious misconduct under the Respondent’s disciplinary policy. The dismissal followed a thorough investigation and disciplinary procedure adhering to the Appellant’s entitlement to due process, his right of reply and his right to representation at every stage. Consideration was also given to alternative sanctions short of dismissal.

The Appellant was involved in a serious altercation with a contractor working for the Respondent on 19^th October 2016. A senior engineer conducted a contemporaneous and summary report into the matter and a decision was taken to establish a full investigation.

No written statement was provided by the contractor, but a statement was read out at an investigation meeting and the minute of that meeting is the only record of the contractor’s complaint.

The Respondent, in the person of DB who was a Director of Services with the Respondent at the material time with a range of responsibilities including for HR, authorised the placing of the Appellant on administrative leave with effect from 21^st October 2016 following a recommendation made by a senior executive officer in HR to DB that he should do so. That recommendation was accompanied by a report.

A comprehensive investigation was carried out in accordance with the procedures of the Respondent by a senior engineer. That investigation involved interviews with seven witnesses including the Appellant. A draft report of the investigation was provided to the Appellant for his consideration. His observations were considered by the investigator prior to completion of the investigation report. A final report issued to the Appellant and the Respondent on 21^st December 2016. The report determined that the Appellant’s behaviour on the day could be considered a health and safety risk in that the ‘ganger’ on site felt it necessary to order him to leave the site and more than one of the Respondent’s employees felt threatened, nervous and distressed by the behaviour of the Appellant.

The Respondent decided to invoke the Respondent’s disciplinary procedure based on the conclusions of the investigator.

Thereafter, a disciplinary interview was conducted by a senior manager, DB, on 9^th February 2017. Thereafter, a disciplinary hearing was convened by DB on 31^st March 2017 which was adjourned to allow the Appellant’s trade union to make a submission. That submission was received in hard copy on 9^th May 2017.

The hearing was reconvened by DB on 19^th May 2017, but the Appellant and his trade union advised in advance that they would not attend that hearing because they had nothing further to add.

The Respondent at all times communicated to the Appellant that his behaviour on 19^th October 2016 “may be deemed to constitute serious misconduct” related to behaviour that was “threatening, leading to physical violence or the fear thereof” which was a deliberate or reckless breach of employee safety health and welfare duties and was a deliberate or reckless breach of employee duties under the Respondent’s policies.

DB issued his report and decision of the disciplinary process conducted by him. That report recommended that the Appellant be dismissed.

The Appellant was afforded the right to appeal the Recommendation of DB to the Chief Executive which he did. An appeal hearing was convened by the Chief Executive on 6^th July 2017. The recommendation to dismiss the Appellant was upheld by the Chief Executive and the Appellant was dismissed by order of the Chief Executive with effect from 26^th July 2017.

The Respondent submitted that the dismissal of the Appellant for serious misconduct was fair and reasonable. The investigation into the matter was impartial and the disciplinary process fully complied with the principles of natural justice. There were, in accordance with the Act at Section 6, substantial grounds justifying the dismissal. In addition, the Respondent submitted that the Appellant contributed fully to his own dismissal by engaging in behaviour that was threatening, leading to physical violence or the threat thereof and which was deemed to be gross misconduct.

Summary testimony on behalf of the Respondent

DB, who was director of service with the Respondent at the material time, gave evidence on behalf of the Respondent.

He confirmed that he was the only person, other than the Chief Executive, who was authorised to place a staff member of administrative leave. He stated that he took the decision to place the Appellant on administrative leave following receipt by him of a report and recommendation to that effect from a senior Executive in the HR department of the Respondent.

He stated that the placement of the Appellant on administrative leave was not a disciplinary measure and that he made no judgement in a disciplinary sense when he decided to place the Appellant on administrative leave having received a report and Recommendation from a senior colleague in the Respondent’s HR department.

Following receipt of a report from a senior engineer who had been appointed to conduct an investigation designed to establish facts in accordance with the disciplinary procedures of the Respondent, DB decided to conduct a ‘disciplinary interview’ to establish whether there were human factors present which might have a bearing on the behaviour of the Appellant on the occasion and to see ‘if we can stop the whole train’.

Having completed that interview, DB decided to move to a full disciplinary procedure. The witness approached other senior colleagues with a view to appointing one of those colleagues to carry out a disciplinary procedure. The other senior colleagues did not feel able to do so because they knew or had worked with the Appellant previously. DB then decided to conduct the disciplinary procedure himself.

He stated that he gave the Appellant a full opportunity to respond to all allegations made against him and ensured that that he had the opportunity to be represented at all stages which he was.

Ultimately, he concluded the procedure by deciding that the Appellant had engaged in behaviour which that amounted to serious misconduct. He recommended that the Appellant be dismissed.

The Recommendation was appealed by the Appellant to the Chief Executive prior to the decision to dismiss being made. DB stated at he did not take the decision to dismiss the Appellant and that the decision to dismiss was taken by the Chief Executive. The Chief Executive decided to dismiss the Appellant having heard his appeal of the Recommendation of DB.

DB clarified to the Court that whereas the disciplinary procedure in place at the time provided that the decision to dismiss an employee shall be taken by the appropriate Director of Services or person nominated by the Director, the necessary statutory or administrative steps to delegate that authority to that individual had not been taken by the Respondent at the material time. DB was the relevant Director of Services at the material time. Consequently, only the Chief Executive had the authority to take the decision to dismiss the Appellant.

The Witness also clarified that the disciplinary procedure in place did not provide for a disciplinary interview to be carried out in advance of the disciplinary procedure provided for by the disciplinary policies in place. He stated that he felt it would be the reasonable thing to do to have such an interview in advance of embarking on the procedure in place in the Respondent employment.

Summary submission of the Appellant

An event occurred on 19^th October 2016 wherein a contractor took the Appellant’s phone from him. The Appellant reported that incident to his supervisor and to a senior executive officer (SEO). In the course of that reporting the Appellant made an allegation of assault against the contractor.

The Appellant was requested to attend a meeting with an SEO and DB on 20^th October 2016. The Appellant was unable to engage trade union representation for that meeting. DB received a report of the incident from the SEO to whom the Appellant had made a report on 19^th October.

The Appellant was placed on administrative leave from 21^st October 2016. The decision to place him on such leave was taken by DB. He determined that the matter warranted the placement of the Appellant on administrative leave. He therefore had insightful knowledge of the facts and had a pre-determined opinion of the case.

An investigation was commenced by a senior engineer appointed by the Respondent. The Appellant was not given an opportunity to input to the terms of reference for that investigation. The Appellant’s trade union sought a copy of the signed complaint of the contractor involved in the incident. The Respondent responded to say that it had supplied all the information available to it.

A written complaint was never made by the contractor involved on 19^th October and has not been provided to the Appellant.

A draft investigation report issued to the parties and comments were sent to the investigator on 19^th December 2016. The final report was then sent to the Appellant on 21^st December 2016.

The Appellant attended a disciplinary interview with DB on 9^th February 2017 having been invited to do so by the Respondent. He was advised that following that interview the question of disciplinary action against him would be considered.

DB decided, following that interview, that a disciplinary procedure against the Appellant should be initiated.

The Respondent appointed DB to carry out the disciplinary procedure set out in the Respondent’s disciplinary policy. He agreed to undertake that role despite his involvement in the process from the outset.

The Appellant attended a disciplinary hearing on 13^th April 2017. At that meeting DB put some 24 points to the Appellant and the Appellant’s trade union. Despite having dealt with those points at the hearing, the Appellant, through his trade union, undertook to provide a written response to DB which was done on 2^nd May 2017.

The Appellant was invited to attend a further meeting on 19^th May 2017 but responded through his trade union to say that he was agreeable to receive the outcome of the process by post. The outcome of the process was confirmed to the Appellant via his trade union on 19^th June 2017 wherein it was confirmed that that a finding of serious misconduct was confirmed and that a sanction of dismissal was recommended with a right to appeal that recommendation.

An appeal of that recommendation was heard by the CEO of the Respondent on 6^th July 2017 and the Appellant was advised on 24^th July 2017 that his appeal had failed. The CEO subsequently took the decision to dismiss the Appellant.

The Appellant submitted that DB had direct involvement in the process from its inception including as regards his initial decision to place the Appellant on administrative leave.

The Appellant was required to attend a disciplinary interview conducted by DB notwithstanding the procedure of the Respondent makes no provision for such an interview.

DB then went on to initiate a disciplinary procedure against the Appellant following that disciplinary interview conducted by him and then proceeded to carry out the disciplinary procedure himself. The result of this sequence of events and involvements by DB was a breach of natural justice in that DB had prior knowledge and a pre-determined opinion on the matter prior to embarking on that disciplinary procedure.

The Respondent has not acted with reasonableness throughout, particularly with regard to the involvement of DB throughout the process. The procedures followed were not as they should have been having regard to the Appellant’s entitlement to natural justice.

Summary testimony on behalf of the Appellant

The Appellant stated that a contractor had taken his phone on 19^th October because he had taken a photograph of the contractor. He stated that the contractor had pushed him to the ground. The Appellant then left the yard and reported the matter to an SEO of the Respondent and to his supervisor. He was advised to take two days off.

He stated that he never received a copy of a signed complaint from the contractor. He said he himself made a complaint against the contractor but as far as he knew there was never an investigation of that complaint,

Applicable law

Section 6(1) of the Act provides that: -

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

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

  (b) the conduct of the employee,

• (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —
  • (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

Section 6(7) of the Act makes clear that the Court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. The Court must determine whether the decision to dismiss is within the range of reasonable responses which could be expected of a reasonable employer to the conduct concerned.

Discussion and conclusions

The Court has noted that the procedure employed by the Respondent in this matter involved a role at multiple stages for DB. The Court has also noted that the ultimate decision maker in the decision to dismiss the Appellant was the Respondent’s CEO. No evidence has been put before the Court that an appeal of that decision was notified to the Appellant or provided to him.

The Court notes that DB had recommended dismissal to the CEO following the conduct by him of a disciplinary procedure and that an appeal of that recommendation was made available to the Appellant. That appeal was heard and decided by the CEO prior to his taking the decision to dismiss the Appellant.

The Court also notes that a disciplinary interview was conducted by DB following the completion of an initial investigation to establish the facts as regards the events of 19^th October 2016. It is clear to the Court that the initial investigation was carried out in accordance with the written procedures of the Respondent. Those procedures however make no provision for the disciplinary interview conducted by DB.

The initial involvement of DB was to authorise the placing of the Appellant on administrative leave which, to all intents and purposes, appears to the Court to be a form of paid suspension. The Respondent has submitted that no aspect of the decision to place the Appellant on administrative leave amounted to a disciplinary act.

The matter of suspension was addressed by the High Court in Bank of Ireland v Reilly [2015] IEHC 241 in which Noonan J stated that: -

• “The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career……Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer”

DB then went on the hold a disciplinary interview which he has acknowledged in evidence was not a feature of the disciplinary policy of the Respondent. He has stated that the purpose of that interview was to establish whether there existed human or other factors which might ‘stop the train’. He clearly determined after that interview that no such factors existed. Having reached that conclusion he then embarked upon a disciplinary procedure which corresponded to an element of the written procedure of the Respondent.

The Court is satisfied that the Respondent organisation is of a nature which afforded the Respondent the opportunity to ensure that the disciplinary procedure could have been conducted by selection of available internal or external management level personnel who had no other involvement of substance with the decision making of the Respondent in relation to the matter.

Ultimately, DB recommended dismissal of the Appellant but did not take the decision to the dismiss the Appellant. The written policy of the Respondent states that a person of the rank of DB would be the party to dismiss an employee. However, DB has given evidence that the Respondent had never put the appropriate arrangements in place to delegate that authority to him or any person of his rank or grade.

That failure to ensure that the structures in place in the employment were consistent with the written disciplinary procedures of the Respondent resulted in a situation not envisaged by the written disciplinary policy of the Respondent. The Appellant was not afforded a right of appeal from the decision to dismiss him, but rather was afforded a right of appeal from the Recommendation of DB that he should be dismissed. That appeal, which he made, was to the CEO who would be the decision maker in any decision to dismiss him. His appeal against the recommendation was not upheld by the CEO who then took the decision to dismiss the Appellant. There was no appeal offered to the Appellant of that decision.

No evidence has been proffered to the Court that the decision maker considered any sanction short of dismissal of the Appellant, albeit DB has given evidence that he, DB, did consider such alternatives when formulating his recommendation.

In determining if a dismissal is an unfair dismissal, the Court has regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and the extent (if any) of the compliance with fair procedures.

The statutory Code of Practice on Grievance and Disciplinary Procedures [S.I. 146 of 2000] at paragraph 4.6 states:

• “The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

  •That employee grievances are fairly examined and processed;

  •That details of any allegations or complaints are put to the employee concerned;

  • •That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

    •That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

    •That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances”.

In particular, the Court considers that the inconsistencies between the written procedures in the employment and the actual operational procedures in place introduced a significant frailty in the procedure adopted by the Respondent which ultimately resulted in a decision to dismiss the Appellant. Those inconsistencies combined with the multiplicity of significant roles occupied by DB taken together with the absence of an appeal mechanism from the decision of the CEO to dismiss the Appellant are, in the conclusion of the Court having regard to the statutory code, fatal to the procedures adopted by the Respondent and consequently to the submission of the Respondent that the dismissal of the Appellant was fair.

The Court therefore concludes that that the dismissal of the Appellant by the Respondent was unfair within the meaning of the Act.

Contribution of the Appellant to his dismissal

The Act at Section 7 in relevant part states as follows:

• 7(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
  • f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

In the view of the Court the findings of the internal investigation are such as to mean that, on the balance of probabilities, the Appellant, through his behaviour on 19^th October 2016, contributed significantly to his own dismissal.

Mitigation of loss

The Act at Section 7(2) in relevant part provides as follows:

• 72) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
  • (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

The Respondent has submitted that the Appellant’s failure to secure employment as a qualified plumber following the termination of his employment is evidence that he has not diligently attempted to mitigate his losses.

In Sheehan v Continental Administration Co Ltd (UD 858/1999) the EAT held as follows: -

• "claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

Redress

The Appellant has sought re-instatement or re-engagement as the appropriate form of redress in the within appeal. In the view of the Court, having regard to the lapse of time, which arose mainly due to the pursuit by the Appellant of alternative remedies in other fora, and the significant contribution of the Appellant to his own dismissal and the nature of that contribution, the Court does not accept that either of these remedies are appropriate. The Court therefore decides that compensation is the appropriate remedy.

The Appellant’s earnings prior to his dismissal were €38,000 per annum, approximately. Therefore, the maximum permissible award of compensation for financial loss suffered is of the order of €76,000. The Court, having regard to the contribution of the Appellant to his own dismissal decides that it is appropriate to discount that potential award amount by a factor of 75%. In addition, the Court concludes that the failure of the Appellant to adequately mitigate his losses should result in a discount of 50% of the remaining potential award amount.

The Court, on that basis, calculates that the amount of award which is just and equitable in all of the circumstances is €9,500.

Decision

The Court decides that the complaint is well founded, and that the dismissal of the Appellant was unfair.

The Court however determines that, having regard to the contribution of the Appellant to his dismissal and his failure to make adequate efforts to mitigate his loss, the appropriate award is €9,500 and orders the Respondent to pay compensation in that amount to the Appellant.

The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
AR	______________________
11 September 2023	Chairman