FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : SELECT SERVICE PARTNER, IRELAND T/A SSP IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - ALBERT FORDJOUR (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal Of Adjudication Officer Decision No: ADJ-00004038 CA-00005849-001
BACKGROUND:
2. The employee appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act, 1977 to 2017 on 25 May 2017. A Labour Court hearing took place on 16 November 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Select Service Partner Ireland Ltd (the Respondent) against a decision of an adjudication officer ref ASJ-00004038 in which he decided that a complaint of unfair dismissal made by Mr Albert Fordjour (the Complainant) was well founded. His decision was as follows
- Procedurally a good investigation had taken place but was, in my view overly reliant on the CCTV and the initial open admission by the Complainant of hugging the young lady. It did not reach the very high standard required to justify depriving the Complainant of his Managerial job.
However the evidence clearly pointed to actions of an inappropriate nature –the Complainant had openly admitted “hugging” the young lady. As a Manager he was fully aware of the “ boundaries” that one did not cross in relation to matters of this nature.
He could not be described as blameless.
In framing my Redress decision below, based on a largely procedurally flawed dismissal, I was very conscious of this fact.
Accordingly as Redress I direct that the Complaint be Re-engaged as provided by Section 7. 1 (b) of the Act with effect from four weeks post the date of this decision. The relevant section is quoted below.
7:1(b)
( b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances.
To avoid all doubt Re-instatement in his exact former Managerial position ( which was the Complainant’s claim) is not being ordered and is not deemed appropriate taking in mind what is “just and equitable taking all the circumstances of the case” into account. Again for clarity the loss of remuneration for the period from the dismissal to the reengagement date is to the Complainant’s account only. No financial liability is to attach to the Respondent for this period.
Background
The Respondent operates a number of food franchises at Dublin Airport. It employed the Complainant in a managerial capacity commencing in 2005. He functioned as a duty manager which required him to visit each of the units to deal with difficulties that arose from time to time.
The Respondent employs both men and women in those units.
On 11 March 2016 the Complainant was waiting for a lift in the Airport while speaking on his phone on his way to an job interview within the Respondent. When the lift arrived and the doors opened a woman, an employee of the Respondent who was working in one of the units supervised by the Complainant, exited the lift. As she did so the Complainant placed his arm around her shoulder and pulled her towards him. She says that he tried to kiss her on the cheek or on the lips. He maintains that he was hugging her as he was of the view that they were friends.
On 26 March the woman made a complaint to the Respondent regarding the incident. The letter of complaint sets out the woman’s memory of the event.
The Respondent arranged for an investigation to be conducted into the complaint. It appointed a Mr McBride, a more senior manager, to undertake that investigation.
The Investigation
The Complainant was called to Mr McBride’s office without prior notification of the nature of the meeting he was about to attend. The Complainant states that at that meeting Mr McBride informed the Complainant that “this was not an investigation meeting”. However a formal note of the meeting are headed “live notes of investigatory/Disciplinary Interview.
The content of the letter of complaint was put to the Complainant. He was not provided with a copy of the letter.
The letter alleged that the Complainant placed both arms woman and that he pulled her towards him and tried to plant a kiss on her lips/cheek.
The Complainant denied that allegation. He said that he placed one arm around the woman’s shoulder and hugged her but did not make any attempt to kiss her in any way.
The Complainant objected to the nature of the questions being put t him by Mr McBride alledging that he was exhibiting a bias in the conduct of the investigation. As a consequence Mr McBride stood down from the investigation and was replaced as investigator by Ms Lyndsay Crolla another more senior manager.
She did not interview the woman that had made the complaint but rather relied on the letter of complaint to ground her investigation. She interviewed the Complainant and put the contents of the letter to him. She also reviewed cctv footage of the incident that was made available to the Complainant to view but he was not provided with a copy of that footage.
Follwing her investigation Ms Crolla decided that the matter should be progressed under the disciplinary procedure.
Ms Andrea Taylor was appointed to conduct the disciplinary hearing. She reviewed the letter of complaint and the report submitted by Ms Crolla which included notes of the meeting that took place between the Complainant and Mr McBride. She also reviewed the CCTV footage. She also interviewed the Complainant and gave him an opportunity to outline his view of the events and offer an explanation for his behaviour.
At the end of that process she decided that Complainant’s behaviour was unacceptable and was incompatible with his status as an employee and in particular as a manager in a position of authority in the Respondent, amounted to gross misconduct and warranted dismissal.
The Complainant was dismissed 0n 23 May 2016.
The Complainant appealed against that decision to Mr Shane Broom Retail Director. He met with the Complainant on 24 June 2016 to hear the appeal. The Complainant set out the basis of the appeal at that meeting. Mr Broom issued his findings and decision on the appeal by way of correspondence dated 30thJune 2016. In that letter he deals in detail with all of the points raised by the Complainant in the course of the appeal and sets out a reasoned response to each of them. He concludes the letter in the following terms
“I therefore uphold the decision to terminate your employment on the grounds of Gross Misconduct for inappropriate behaviour in the workplace which led to a breakdown of trust and confidence. You have now exercised your right of appeal under the Respondent’s Disciplinary Procedure and this decision is final.”
The Complainant appealed against that decision to the WRC on 14 July 2016.
The Law
6.—(1) 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,
Right to fair procedures
In the case ofLeary v. National Union of Vehicle Builders[1971] 1 Ch. 34 Megarry J. stated in the case of Megarry J. held that, whilst a complete rehearing by an original tribunal, or by some other body competent to decide an issue, might satisfy the requirements of natural justice, a plaintiff, where there was right of appeal from an original decision, was entitled to natural justice both before the original tribunal and the appellate tribunal . At page 49 the learned Judge said:” If a man has never had a fair trial by the appropriate trial body, is it open to an appellate body to discard its appellate functions and itself give the man the fair trial that he has never had? I very much doubt the existence of any such doctrine’ and again on the same page he said: “As a general rule at all events, I hold that a failure of natural justice in the trial body cannot be cured by sufficiency of natural justice in an appellate body.” I agree with this statement of the law., in which he held that, whilst a complete rehearing by an original tribunal, or by some other body competent to decide an issue, might satisfy the requirements of natural justice, a plaintiff, where there was right of appeal from an original decision, was entitled to natural justice both before the original tribunal and the appellate tribunal . At page 49 the learned Judge said:” If a man has never had a fair trial by the appropriate trial body, is it open to an appellate body to discard its appellate functions and itself give the man the fair trial that he has never had? I very much doubt the existence of any such doctrine’ and again on the same page he said: “As a general rule at all events, I hold that a failure of natural justice in the trial body cannot be cured by sufficiency of natural justice in an appellate body.”
InState (Irish Pharmaceutical Union) v. Employment Appeals Tribunal, [1987] I.L.R.M. 36 McCarthy J at pages 40-41 of the report stated
“it is a fundamental requirement of justice that persons or property should not be at risk without the party charged been given an adequate opportunity of meeting the claim as identified and pursued. If the proceedings derive from statute, then, in the absence of any set of fixed procedures, the relevant authority must create and carry out the necessary procedures; if the set or fixed procedure is not comprehensive, the authority must supplement it in such a fashion as to ensure compliance with constitutional justice, for which proposition there is a wealth of authority:O’Brien v. Bord na Mona[1983] I.R. 255;Loftus v. The Attorney General[1979] I.R. 221;
East Donegal Cooperatives Livestock Marts Ltd. v. Attorney General[1970] I.R. 317.”
Duty to establish the truth through proper procedures
In Galway-Mayo Institute of Technology -v- Employment Appeals Tribunal & ors Neutral Citation:[2007] IEHC 210 Charlton J at paragraph states
14. Every judge, and every judicial or quasi-judicial tribunal, takes on two fundamental tasks in hearing a case. They are, firstly, to attempt to find out what the true situation is as between the allegations and counter allegations of the parties. Sometimes that fundamental duty may be diverted by the necessity for parties to abide by written pleadings in furtherance of the right to have notice of a claim or a defence; but even there, such procedural rules exist for the purpose of assisting in finding out where the truth lies. Where one party to a hearing is not legally represented, the court or tribunal may find themselves drawn in to the process of examination and cross-examination where otherwise it may be wise to remain silent and simply listen to the evidence. Where a decision-making body is drawn into the process of attempting to find out the facts, then it does so in fulfilling the fundamental principle that justice requires to know the truth before it can decide on the remedy. Secondly, a judge applies the rule of law to his or her decisions and a tribunal is no different from that. Certainty of legal principle is the opposite end of the spectrum to the arbitrary decision making that characterises a totalitarian society. A judge, tribunal, or quasi-judicial tribunal, cannot divert from its duty to discover the law and then to apply it. The law can not be made up. It must be applied whether it is attractive or unattractive; subject only to the power of the Superior Courts to declare a law unconstitutional as a last resort if the principles of constitutional interpretation cannot otherwise be applied to save it and so to respect the will of the people as expressed in the Oireachtas.
Findings of the Court
In this case the Complainant was the subject of a complaint by a fellow employee. He was called to a meeting without prior notification of its purpose of the risk that it posed to his continued employment and good name. Such a course of action was unfair to the Complainant.
However at that meeting he was advised of the nature of the complaint against him though was not provided with a copy of the letter of complaint. He was removed from duty and invited to respond to the allegations. He subsequently admitted that he had placed an arm around a more junior female employee’s shoulder as he entered and she exited a lift on the campus on which they worked. He acknowledged that she had not invited him to do so. He denied two allegations contained in the letter of complaint. He denied that he had placed two arms around her shoulders and pulled her towards him and secondly he denied that he had attempted to kiss the woman on the cheek or lips. He said that he was hugging her and not attempting to kiss her. He justified his actions on the grounds that he considered themselves to be friends and that it was a cultural practice within theRespondent.
CCTV footage of the incident was available to both sides to view in the offices of the premises owners. That footage showed that the Complainant had placed his right arm around the employee and that he had pulled her towards him. It shows him leaning towards her but is inconclusive on the question of whether he tried to kiss her on either the lips or the cheek.
That footage was shown in Court with the agreement of both sides.
The Complainant offers two lines of defence.
Firstly he states that the procedures followed by theRespondentwere flawed. He submits that he was not notified of the purpose of his first meeting with Mr McBride. He submits that this deprived him of an opportunity to prepare for that meeting and to be accompanied or represented at it.
He further submits that when Mr McBride recused himself from the investigation Ms Crolla was appointed on the basis that she would conduct a full de novo investigation. He submits that she failed to do so and instead merely carried it on from the point at which Mr McBride left it. He submits that this amounts to incorporating Mr Mc Bride’s biases into the procedure.
He further submits that Ms Crolla at no point interviewed the woman who made the complaint but merely took the letter she wrote at face value. He submits that this amounts to a fundamental flaw in the procedure. He points out that the complaint was manifestly exaggerated regarding the claim that he placed two arms around the woman in the course of the impugned incident when in fact he placed only one arm. He submits that by not interviewing the woman Ms Crolla failed to establish the facts and that this impacted on her report and on the subsequent decisions that flowed from that report.
He submits that Ms Taylor relied on the report to ground her entire disciplinary hearing. He submits that as the report had failed to establish the facts she could not rely on it to ground her conclusions.
He further submits that at no point was he given the opportunity to put questions to the complainant to enable him to establish the context in which the entire event occurred.
Finally he submits that two witnesses that he asked to have interviewed by Ms Crolla and Ms Taylor were not invited to give evidence. He submits that this was unfair to him and that it deprived him of the opportunity to mount a full defence in this case.
Ms Crolla submits that she relied on Mr McBride’s report and that she based her investigation on the letter of complaint and on the cctv footage. She submits that she put both of these to the Complainant and that he was given every opportunity to explain his actions. She submits that not withstanding the fact that the cctv footage does not support some of the complaints in the letter the Complainant’s behaviour was sufficiently offencive to warrant referring the matter for a disciplinary hearing.
She further stated that she saw no value in the witnesses nominated by the Complainant and decided not to interview them for that reason. She stated that it did not, in her view adversely affect her investigation.
Ms Taylor told the Court that she relied on Ms Crolla’s report, the letter of complaint and the cctv footage in the conduct of the disciplinary hearing. She states that the Complainant admitted that cctv footage showed him placing his arm around another employee and pulling her close to what he described as give her a hug. She said that she considered that behaviour to amount to gross misconduct and decided to dismiss the Complainant as his actions were not in keeping with this management role in relation to the employee and in the Respondent generally and that the trust between him and the Respondent had been broken. She confirmed that she saw no purpose in interviewing the witnesses nominated by the Complainant as they were not present at the incident.
The Court finds on the basis of all that was before it that the investigation conducted by the Respondent was flawed. However the Court further finds that the Complainant was aware of the accusations that had been made against him and was given an opportunity to answer them and to be represented at the various substantive hearings. Accordingly the Court finds that in that regard the Complainant received fair procedures in the processing of this case.
The Court also finds that the Complainant admitted placing his hand on an employee and of pulling her towards him to hug her. He also accepted that it had not been invited in any way by the woman involved.
The Court finds this behaviour unacceptable, and an invasion of her right to bodily integrity. While it may seem innocuous to the Complainant what is important is that it was uninvited and unwanted by the woman who has a perfect to attend at work without any fear or anxiety that her bodily will be compromised by anyone and especially not by a person who holds a position of authority over her.
The Court further finds that such action without a context of consent would warrant dismissal.
However the Court finds that the Complainant submits that he understood that he and the woman were friends and that his actions were a friendly gesture of salutation that he made while speaking on the phone.
The Court finds this explanation wholly unconvincing. The Complainant established no basis for forming the opinion that he had formed a friendship with the woman whom he supervised. Instead the evidence he gave to the Court established that he had engaged with the woman as her superior and that she had been polite to him and had carried out her duties when dealing with him. The Court finds no basis for concluding that a polite interaction between a supervisor and a supervised person constitutes any basis for concluding that a bond of friendship had developed that entitled the supervisor to go beyond the normal salutations exchanged at work and to touch the person and to pull her towards him while exiting a lift and to seek to hug her. The Court takes the view that such behaviour amounts to an infringements of the employees rights to bodily integrity that cannot be easily dismissed as a well-intentioned misunderstanding. Furthermore the Court finds the behaviour an abuse of authority in the workplace that cannot be treated lightly.
One issue however does concern the Court. That is the Complainant’s assertion that he had a more developed relationship with the woman and that the incident took place in a broader context. In support of that contention he offered two witnesses to the Respondent for interview.
No one involved in the process interviewed those witnesses. The Court finds this failure on the part of the Respondent unacceptable. It is not sufficient that they were dismissed as not present at the incident and therefore of no value to the investigation.
It is well settled law that the duty of any investigation is to establish the truth of what occurred. None of those making decisions in this case knew the truth of that assertion. None of them interviewed the woman who made the complaint to put that assertion to her. Furthermore none of them interviewed the witnesses nominated by the Complainant.
Accordingly the main purpose of the investigation was not met. The investigators and the personnel charged with processing the matter through procedures did not take the steps necessary to establish the truth.
The Court does not know whether those witnesses would have corroborated the Complainant’s evidence. Neither does it know how the employee who made the complaint would have reacted to those claims. More importantly the officials charged with establishing the truth do not know either because they never asked the witnesses or the complainant involved.
In those circumstances the Court must find that while the Complainant’s behaviour appears to be totally unacceptable it cannot find that he was afforded fair procedures in the manner in which the Respondent decided that appearances and reality were identical as they did not properly investigate and decide one major element of the Complainant’s defence.
Accordingly the Court must find that the outcome of that flawed procedure cannot stand.
In those circumstances the Court finds that the dismissal was unfair.
Remedy
Redress
Section 7 of the Unfair Dismissals Act, 1977, as amended, states, in relevant part, as follows:
- 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
It is a matter for the Court, having listened to the views of the parties as to preferred redress in the event of a finding of unfair dismissal, to determine which of the three forms of redress open to it is most appropriate having regard to the circumstances of this case.
The Court therefore determines, having regard to the procedural deficiencies associated with the Complainant’s dismissal and the Complainant’s contribution to the dismissal, that the Complainant is entitled to re-engagement in accordance with Section 7(1)(b) of the Unfair Dismissals Act, 1977, as amended.
In accordance with Section 7(1)(b) of the Act, the Court determines that the terms and conditions of the re-engagement are to be as follows:
- 1. The Complainant is to be re-engaged in to employment within the Select Service Partner Group at Dublin Airport in to a suitable role that is one level or grade below the Unit Manager role which the Complainant occupied prior to his dismissal in May 2016. The pay and conditions of employment to apply are to be those associated with the demoted role. The demoted role in to which the Complainant is to be re-engaged is to be determined by the Respondent having regard to the Complainant’s experience, skillset and capabilities;
- 2. Re-engagement is to take effect from Monday 8thJanuary 2018. The period between the date of dismissal on 23rdMay 2016 and 8thJanuary 2018 is to be considered as a period of suspension without pay. For the avoidance of doubt, the Complainant’s service is deemed to be continuous throughout the aforementioned suspension period;
- 3. The Complainant is to be placed on a final written warning with effect from 8thJanuary 2018 for a two-year period.
The Court so determines
Signed on behalf of the Labour Court
Brendan Hayes
14th December, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.