EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Jon Monnickendam, - claimant UD765/2012
Limerick City Council - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr. W. O'Carroll
Mr F. Dorgan
heard this claim at Limerick on 4th March 2014
and 5th March 2014
Claimant: Mr Gerard Kennedy, SIPTU, Liberty Hall, Eden Quay, Dublin 1
Respondent: Mr. Eamonn Hunt, Local Government Management Services Board,
Olaf House, 35 Usher’s Quay, Dublin 8
A preliminary application made by the respondent to have this case heard ‘in camera’ was refused by the Tribunal.
Summary of Evidence
The respondent is a County Council in which the claimant worked as a supervisor in the fire service emergency control room. The claimant was dismissed on the 12th of October 2011 after an investigation into a complaint of harassment and sexual harassment was made against him.
The person who made the complaint against the claimant gave evidence. The claimant was her supervisor. She detailed all of the incidents of harassment/sexual harassment which included name calling, sexual innuendo, insinuation that she was a lesbian and knowledge of/the claimant referring to exposing himself and a camera phone picture of same.
Initially she saw the name calling as ‘banter’ but it progressed to the stage that she verbally complained about the situation as early as 2008 and sent a document outlining her allegations to the claimant’s supervisor on the 3rd of June 2010. She had a meeting on the 26th of October 2010 to elaborate further on the complaints and provide the names of witnesses to the allegations. The claimant had a number of further meetings regarding her allegations.
The Principle Emergency Control Operator gave evidence. The claimant or the complainant did not report to her. She gave evidence of the claimant exposing himself to her on two occasions; the first she ‘laughed off’ but took offence the second time and asked the claimant’s partner (who also worked for the respondent) to ensure it didn’t happen again. The claimant used aggressive language towards her but it was not of a sexual nature. This witness is aware that the claimant had a picture of himself exposed on his camera phone. She took part in the investigation process but was not witness to any of the allegations.
A Senior Emergency Control Operator gave evidence that he witnessed the claimant calling the complainant names but did not witness any further incidents.
An Emergency Control Operator that also has the claimant as his supervisor gave evidence. He did witness the claimant calling the complainant names and saw that it upset her. This type of ‘banter’ was not the norm even though there is ‘an offensive sense of humour and a level of sexual banter’ within the respondent. This witness is aware that the claimant had a picture of himself exposed on his camera phone. This witness, the claimant and the complainant did visit a sex shop together on their lunch-break.
A number of additional witnesses that took part in the investigation gave evidence.
On foot of the allegations received the respondent engaged an independent company to conduct the investigation. The lead investigator (MC) gave extensive evidence on the process and procedures she used in carrying out the investigation. MC was given the terms of reference for the investigation and proceeded to conduct the investigation and compile a comprehensive report on her findings. There was no allegation of bullying made by the complainant but as it forms part of the respondent’s Dignity at Work Policy any possible bullying was also investigated as well as possible harassment and sexual harassment. The findings were, that the claimant engaged in repeated inappropriate behaviour both directly and indirectly. The claimant had the full right of reply to the allegations. MC strongly disputes saying ‘you do know he did this?’ to the claimant’s partner during the investigation interview; the full meeting is noted and recorded by an independent note taker. The claimant demonstrated his standard of behaviour by using expletives and walking out in a temper during the investigation meeting.
CC, the Director of Services gave evidence. The claimant was given time (1 month) to respond to the investigation report before this witness, by letter of the 23rd of August 2011 informed him that the complaint against him had been upheld. A meeting was then held in order to hear the claimant before any sanction was decided. During that meeting the claimant’s representative informed her that they had elected not to comment on the investigation report as they believed they had the right to appeal the investigation decision to the Rights Commissioner. The meeting was adjourned immediately to clarify the position.
S.I. No. 17/2002 - Industrial Relations Act 1990 (Code of Practice Detailing Procedures For Addressing Bullying in The Workplace) (Declaration) Order 2002, states that after the investigation;
j. Should management decide that the complaint is well founded, the alleged perpetrator(s) should be given a formal interview to determine an appropriate course of action. Such action could, for example involve counselling and/or monitoring or progressing the issue through the disciplinary and grievance procedure of the employment. 2
k. If either party is unhappy with the outcome of the investigation, the issue may be processed through the normal industrial relations mechanisms.
CC reconvened the meeting for the 6th of September 2011. CC outlined her view that (j) should occur before progressing to (k) and that there was no case law supporting the claimant representative’s contention that (k) could come before (j). The claimant also stated that the investigation conclusion was based on opinion and not fact and that there was collusion among the witnesses. CC considered the claimants representations; she was happy with the independence and comprehensiveness of the investigation and the fact that the claimant had every opportunity to provide his own responses and witnesses to counteract any ‘collusion.’
CC considered the claimant’s actions Gross Misconduct and made the recommendation to dismiss him, which was communicated to the claimant by letter of the 7th of September 2011. He was given the minutes of the meeting and notified of his right to appeal this decision. CC’s decision was based on the findings in the investigation report. As she deemed his actions to be gross misconduct, dismissal was the only appropriate sanction.
CW, a Fire Control Operator supervisor (and claimant’s partner) gave evidence. CW never received any training on the dignity at work policy. The claimant was selected as a ‘peer support’ by secret ballot by his colleagues; this is a support service so any staff member with any problems can go directly to the claimant. CW was not aware of any difficulties between the claimant and the complainant or any complaints made against the claimant. Remarks of a sexual nature were common between everyone in the respondent; ‘it was on-going banter that seemed acceptable as everyone was involved.’ There was never any objections made to the banter but it has now ceased within the respondent. CW did not witness the claimant exposing himself but was informed of the incident afterwards.
As part of the investigation interview MC said to the witness ‘you do know he did this?’. This resulted in this witness telling the claimant that ‘we’ve a serious problem here; they’ve made up their minds.’ The claimant did not raise this comment as an issue at any time during the process.
The claimant became aware of the complaint against him when his supervisor sent him the email of complaint. Two weeks prior to the complaint, things had become difficult between the claimant and the complainant as there were issues with her work performance. These issues were communicated to him by his supervisor. Prior to this they had a professional relationship with the claimant going as far as having a private meeting with the complainant to find out what was upsetting her.
The claimant has no recollection of the complainant asking him to stop his behaviour towards her in 2008 or drawing any issues to his attention. Within the previous year of the complaint, the claimant, another staff member and the complainant had gone to a sex shop during their lunch break. There was a culture of ‘sexual banter’ in the respondent that was established before the claimant took up employment. The claimant was also called names by the complainant, his manager and other staff; this was normal behaviour, in hindsight the claimant accepts that all the respondent staff were engaged in inappropriate behaviour. The claimant does not accept that he was bullying, harassing or sexually harassing the claimant. He did not start the rumour that the complainant was a lesbian. He was never reprimanded for his behaviour or given an opportunity to change. The claimant accepts exposing himself at a work night out while under the influence.
The claimant attended the investigation meeting; he denies using expletives and walking out in a temper during the investigation meeting. He did not present his phone as he had changed it and it was also out of the investigation teams remit. When the claimant met with CC he told her that he believed he was subject to a conspiracy; he believed that the complainant the senior operator and the manager were all colluding to have him removed from the control room. On foot of CC’s recommendation to dismiss him the claimant then met with the City Manager. The claimant asked for access to his diaries and email in order to help prove his case. The claimant did not get any response from the City Manager.
Only after the claimant was dismissed did his partner (CW) tell him the exact words the investigator used in stating that he was guilty.
The Tribunal carefully considered the evidence adduced by both parties, it based its decision on the claimant and complainant’s evidence, the investigation report and all of the witnesses provided.
The Tribunal is of the view that despite the protestation of the claimant to the contrary, the claimant was informed of the allegations against him. The respondent engaged independent consultants to investigate and evaluate in a forensic manner, the allegations of bullying, harassment and sexual harassment made against the claimant. Thirteen allegations were investigated and in respect of 4 adverse findings were made against the claimant. The claimant and the complainant were interviewed extensively in formulation of the report, the results were notified to the claimant and an opportunity was given to him to comment on and make submissions on same.
The Tribunal prefers MC’s account of the investigation meeting with CW and does not believe MC commented on the status of the complaint to any of the witnesses.
The claimant was offered and declined the right to appeal the City Managers decision to dismiss him. In both CC’s and the City Managers decision, recourse was had to the investigation report.
The Tribunal find that the claim under the Unfair Dismissals Acts, 1977 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005 fail.
Sealed with the Seal of the
Employment Appeals Tribunal