ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008767
Parties:
| Complainant | Respondent |
Anonymised Parties | Customer services advisor | Business services provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00011240-001 | 10/05/2017 |
Date of Adjudication Hearing: 20/10/2017
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
Complainant employed as a business development systems advisor since 1/9/2007. His gross salary is €2733.34 per month; he works a 40-hour week. The complainant was arrested for possession and cultivation of cannabis on 7/3/16. He kept his manager up to date on court proceedings. He was suspended on pay on 23/1/17 pending an investigation. He was dismissed on 13/3/ 17. The respondent advised him that the newspaper article on 28/12/16 publicising his arrest and conviction for possession and cultivation of cannabis could bring the company into disrepute and that further articles could do likewise. On 4/4/17, he appealed the decision to dismiss him. His appeal was not upheld. He advises that he was not afforded the right to have a representative attend the preliminary meeting on the 23/1/17. He identified re-instatement as his remedy |
Summary of Complainant’s Case:
The complainant advised that he had been arrested on 7/3/2016, for possession and cultivation of cannabis. He advised that he kept his line manager in the company to which he seconded up to date. Complainant advised that he believed he was subject to rules of company to which he was seconded by the respondent. He stated that he reported to the manager who directed him in his seconded position. An article in the Irish Independent on 28th December 2016, disclosed that he had pleaded guilty to the charge of possession of cannabis with intent to supply. He met this line manager in the company to which he was seconded in January 2017. His line manager advised him to discuss it with the respondent company. He states that he was advised to keep it informal and not to involve his union. He met the respondent’s HR director on 23/1/17 who suggested that he consider resignation and to take some time to consider same. The respondent did not give written notice of this meeting, nor its purpose, nor did they alert him to the right to bring a colleague with him. They did not supply him with a copy of the disciplinary procedure. He received nothing in writing. He was invited to attend a formal investigative meeting with the respondent on 21/2/2017. He was not provided with specific breaches of the disciplinary procedure, nor specific charges, nor with a copy of the procedure in advance of that meeting. He was informed then that he had been suspended on the 23/1/2017. He was given an opportunity to explain his circumstances. He was notified of his dismissal on 13/3/2017. The respondent advised that the newspaper article had brought the company into disrepute with the possibility of further articles compounding the problem for the company. He appealed the decision to dismiss him in line with the respondent’s disciplinary policy and on the basis of the severity of the sanction. At the appeal meeting, conducted by the respondent’s Associate Vice- President on the 4/ 4/2017, he was advised that the 8 weeks were not a suspension but a period of paid leave for him to reflect on his situation and that he should have considered resignation during that time. His appeal was not upheld. His cannabis use was due he states to chronic back pain. He enrolled with Narcotics Anonymous In mid- March 2017. He is attending counselling, and pain management clinics since May 2017. He alleges that other staff convicted of violent crimes are still employed with the respondent. He never offered to or supplied any fellow employee with the banned substance nor was he ever accused of same. He was convicted of possession with intent to supply. He was given a suspended sentence. He is off drugs. He secured a job in June 2017. He earns an annual salary of €25,000. |
Summary of Respondent’s Case:
The respondent is a subsidiary of an Asian -based company. They provide business and IT services to a range of companies. They have a staff in Ireland of 900. The respondent stated that the complainant commenced employment with one of their predecessors in 2007 and through a series of TUPE situations all his employment rights and obligations transferred to the respondent. He was seconded to one of their big clients but at all times he was an employee of the respondent. He re-contracted with the respondent in 14/11/2013and his signed contract was submitted. They stated that he was a good employee and that they had no issues with him They dispute his assertions that he should be subject to the rules of the company to which he was seconded and advised that all employees in seconded positions with the particular client to which the complainant is assigned are employees of the respondent and that this is the basis of an agreement with the client for whom the complainant provides services. The initial meeting held on 23/1/17, which led to his suspension was characterised as an informal meeting so as to give him an opportunity to resign. They applied the provisions of the disciplinary procedure correctly. The respondent stated that he showed no remorse for his actions in any of the meetings held with the company. The respondent was concerned as to what message might go out if he were not dismissed. The respondent expressed concerns that he might repeat offend. He never advised then that he had an addiction problem. Had he done so they might have offered him assistance. The respondent’s senior HR manager said that the complainant could” still be growing and smoking pot” had the Gardai not uncovered his activities. Had the amount been merely for possession, they might have looked at it differently. They dismissed the complainant because of his plea of guilty to the charge of possession with intent to supply. Conviction for an offence outside of the workplace is contained in the list of acts/omissions which amount to gross misconduct in the respondent’s disciplinary procedure. So also, does damage to the company’s reputation. The respondent advised that their workforce is predominantly young and impressionable; this places an obligation on them to demonstrate that the company does not condone the consumption of illegal substances and more especially the sale of them. The reputational damage to the company and the breakdown of trust between the complainant and the respondent equally decided the matter for them. The respondent relied on Gregory Crowe V An Post,UD1153 which found that the dismissal of that complainant, convicted of possession of cocaine with intent to supply was not unfair. |
Findings and Conclusions:
The complainant enrolled with Narcotics Anonymous mid-March 2017.He had undertaken counselling and pain management treatment to address his back pain. It is indisputable that an employer is entitled to a relationship of trust with an employee and that this has been damaged by the complainant’s actions. An employer is equally entitled to protect their reputation. The complainant’s behaviour conforms to the definition of gross misconduct as contained in the respondent’s disciplinary procedure. Two matters arise: In Gregory Crowe v An Post, UD1153, the EAT stated that for a dismissal for out of work misconduct to be fair, “there must be a genuine connection between the employee’s offence and the employment. The connection must be such that: it leads to a breach of trust and /or causes reputational and/or other damage to the company; the employee’s offence makes it unsuitable for the employee to continue in that role- for example, if an employee is convicted of theft and his job involves dealing with cash, then this could be sufficient grounds for dismissal; the employee’s offence causes the employer to genuinely lose trust and confidence in the employee; the employee’s behaviour risks bringing the employer’s name into ill repute; dismissal is more likely to be fair if the employee’s behaviour was reported in the press;” The EAT goes on to state that if the misconduct is such as to impact adversely on the employer’s business and this comprehends both the operational requirements and reputation of the business then “the employer has the right to institute disciplinary proceeding . Whether this gives the employer the right to impose sanctions up to and including dismissal will depend on the particular circumstances of each case. But the within case can be distinguished from Gregory Crowe v An Post UD1153 in terms of the connection between the conviction in that case and the work undertaken by that employee, a postman. There was a connection or nexus between the claimant’s criminal conviction and his employment. The conviction in that case was for the sale and supply of cocaine. His job entailed the delivery of valuable articles, sometimes containing money in circumstances where he had been previously intimidated and coerced into giving monies to a drug dealer or supplier. It was held that there was an ongoing risk for the employer and the security of valuables in the postman’s charge could not be guaranteed. Notwithstanding an employer’s entitlement to have persons of integrity within their employment, the complainant in the within case is a business systems and IT resource /support for the respondents’ clients and as such is not exposed to the same risks facing the employee in the case of Gregory Crowe V An Post. The work which he does and the conviction which he has does not pose the same risks for his employer as that facing the employer of a postman responsible for the delivery of valuable items yet convicted of supply and sale of an illegal substance and known to have been coerced and intimidated into handing over money to criminals because of his drug abuse. I accept that the complainant in the within case is linked through a Linkedin page with the respondent and the client for whom he provides services. In Marvin Moore v Tesco Ireland Ltd UD 2423, where the dismissal of an employee was due to a conviction for the possession of with intent to supply illegal substances, the EAT in distinguishing the facts justifying the dismissal in UD1153 , noted that the conviction, not publicised in UD 2423, had been publicised in the former case and considered that to be a distinguishing feature though they did remark that publication of a conviction was not a licence “ to automatically dismiss”. They overturned that dismissal but for other reasons also. The respondent employs 900 people in Ireland. Is it likely that the conviction of one of these 900, who is currently attempting to put his conviction, addiction and wrongful practices behind him and who could have had alternative sanctions applied is of such import as to do damage to the company’s reputation? The fact that the initial informal meeting on 23/1/17 was designed by the respondent’s own admission to give him an opportunity to resign suggests that his fate was predetermined and that there was no place for him in their company; it was resignation or dismissal. But the respondent is obliged to follow his own procedures. The company’s own disciplinary process provides for lesser sanctions than dismissal and states “an employee will only be dismissed after consideration of other possible disciplinary sanctions including (but without Limitation) - Demotion, -Loss of seniority, -Suspension without pay. “ A less drastic sanction was advanced by his union rep at the appeal meeting on the 4/4/17.Yet the minutes of that meeting make no reference to the respondent’s consideration of that proposal. Other factors contributing to the respondent’s decision to dismiss was their concern as to how other staff might interpret their response to the complainant’s conviction. The record of the appeal meeting held on the 4/ 4/17 questions the message which would be given to fellow employees were the complainant to be” let off”. A significant factor in the EAT finding that the complainant in Marvin Moore V Tesco Ireland Limited, UD2423, had been unfairly dismissed was the absence of any consideration given to lesser sanctions. This case also entailed a dismissal following a conviction for drug offences. The respondent has an Employee Assistance Programme which offers counselling for persons with addiction problems. The respondent advises that he never admitted that he had addiction issues and hence this was not offered to him. Other factors contributing to the respondent’s decision to dismiss was their concern as to how other staff might interpret their response to the complainant’s conviction. The record of the appeal meeting held on the 4/ 4/17 questions the message which would be given to fellow employees were the complainant to be” let off”. The inference being that a decision not to dismiss would be seen as condoning his actions. A disciplinary procedure is not necessarily a device to make an example of an employee to fellow employees. The State’s judicial processes have adjudged the complainant’s actions, have convicted him and applied the law. In addition lesser sanctions were available to the respondent to demonstrate their zero tolerance for substance abuse. I find that the procedure used to dismiss the complainant did not respect his right to fair procedures in the following way; a) evidence of a predetermined outcome, b) failure to advise him in advance of potential consequences which could and did emanate from meeting of 23/1/2017; failure to advise him of right to be accompanied by a respresentative to that meeting; c) absence of notification of specific charges and of specific breaches of the disciplinary procedure in advance of the formal investigative meeting of 23/2/17 ; d) non- adherence to respondent’s own disciplinary procedure which obliges them to consider lesser sanctions ; e) disregard for complainant’s previously unblemished record of 10 years’ service in the context of lesser sanctions being available to the respondent. The respondent failed to acquire any medical evidence as to likelihood of repeat offending – one of their stated concerns feeding into their decision to dismiss. I find that his dismissal was procedurally unfair. The complainant has identified reinstatement. I accept that the complainant failed to adequately acknowledge the validity of the respondent’s concerns. However that does not disentitle the complainant to fair procedures. The complainant ‘s loss to date is €8814, (3 months salary + difference between current and former salary). I find the complainant contributed to his dismissal to a very significant extent. I award him €2201. |
Decision:
Section 8 of The Unfair Dismissals Acts 1977- 2015 requires that I make a decision in relation to the complaint
I find the dismissal to be procedurally unfair. I award the complainant €2201 |
Dated: 31/01/18
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Unfair dismissal; Criminal conviction; damage to company’s reputation; fair procedures |