ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021972
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | A Company |
Representatives | William Quigley Unite the Union | Jan Hayden IBEC |
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-00028838-001 | 04/06/2019 |
Date of Adjudication Hearing: 28/11/2019
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015and 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:
The complainant commenced employment with the respondent on 22nd September 2008. He was summarily dismissed from his employment on 20th March 2019 following the conclusion of a disciplinary process on the grounds of gross and major misconduct. |
Summary of Complainant’s Case
The complainant’s representative stated that he should not have been suspended from work pending an investigation into the allegations and claimed that he should have been given the opportunity to respond to same prior to being suspended. He also highlighted a number of issues he with the investigation process. Specifically, it was claimed that: · There were no terms of reference issued to the complainant in advance of the investigation · The possibility of dismissal was never highlighted to the complainant either before or during the process. · There were no times or dates given of the different alleged bullying incidents · The complainant was told not to have contact with any other staff during the process but the witnesses were not likewise instructed. · A number of witnesses should not have been interviewed because of conflicts of interest they had. · There were no eye witnesses to any of the alleged events. · Other incidents in relation to which allegations were made against the complainant were used by the investigator in this matter despite these alleged events having happened years before and no findings ever having been made against the complainant. · The complainant was denied the opportunity to meet with the witnesses to alleged events and it was suggested that this was his right under SI 146. · The investigator dealt with one of the allegations under a bullying and harassment prevention policy which was not in place in the company. · There was insufficient and contradictory evidence presented by the witnesses during the investigations which meant that the allegations against the complainant should not have been upheld. · The investigator should only have decided to uphold the complaints or not and should not have decided whether or not they constituted gross or major misconduct · The investigator failed to highlight in his findings which particular incident he considered either gross misconduct or major misconduct. |
Summary of Respondent’s Case:
A complaint of Bullying and Harassment and Assault was brought to the attention of Management on 29th January 2019 from Mr A. Following this initial complaint, other members of staff and contractors brought complaints and specifically another incident pertaining to an allegation of a further assault in September 2018 during a social night out, involving the Complainant and another member of staff, Mr B.
The complainant was invited to a meeting on the same day to advise him of the allegations and the decision to place him on suspension pending an investigation. The complainant was accompanied by his union representative and at this meeting tendered his resignation. He admitted both that he head butted Mr A and that he was in an altercation with Mr B and also that he swore at colleagues. The HR Manager advised him of the process that would follow and asked him to reconsider his decision to resign to allow a full and thorough investigation into the allegations which would also permit him to respond to all allegations. The complainant was suspended on full pay and reconsidered his decision to resign.
Following the retraction of his resignation, a lengthy investigation was carried out in line with the Company’s Grievance and Disciplinary policies as well as its Bullying and Harassment Prevention Policy. The Complainant was afforded the right to be accompanied to all meetings. The following allegations against the complainant:
Alleged bullying and harassment in the work place Alleged assault on an apprentice on Friday 25th January 2019 Alleged attempted assault on an apprentice on 21st September 2018 Alleged threats of repercussions in the workplace
As part of the investigation, Mr A and Mr B submitted written statements. In his statement Mr A refers to an incident that occurred on 25th January 2019 during a work night out in a pub with colleagues in celebration of 2 apprentices completing their apprenticeships. Following an earlier verbal altercation between Mr A and the complainant, it was alleged that the complainant headbutted Mr A in the toilet of the pub. It was further alleged that the complainant gave €20 to the attendant in the toilet to keep him quiet and then the complainant left the toilet.
Mr A claimed that Mr C came into the toilet afterwards because the complainant had told him that he had headbutted Mr A and he was concerned for his wellbeing. This was confirmed by Mr C during the course of the investigation. Apart from this incident, Mr A stated that on numerous occasions during work the complainant had called him a “stupid c**t and to f**k off.
In Mr D’s statement to the investigation, he outlined an incident at a work associated event in September 2018 where he was told to f**k off by the complainant and alleged that on the same evening when he refused to engage in a fight with the complainant, that he was pushed to the wall by the complainant.
On Tuesday 5th February 2019 the complainant was provided a copy of all statements and invited to attend an investigation meeting on 7th February 2019. He was afforded the opportunity to be accompanied by his union representative. During this meeting he denied that he head butted Mr A and described it as a head motion. He stated he gave money to the toilet attendance as a tip. The complainant disputed Mr C’s evidence and alleged that Mr C was trying to get his job.
A number of other employees were spoken to as part of the investigation and the complainant was given an opportunity to review minutes of the meetings to respond in writing to those who made statements.
Following completion of the investigation, two of the four allegations namely, bullying and harassment in the workplace and the assault on Mr A on Friday 25th January 2019 were upheld. These two allegations were deemed by the Investigator to constitute major and gross misconduct.
Further to the completion of the investigation, a disciplinary meeting took place on March 12th further to which the complainant was dismissed. The complainant subsequently appealed this decision but the dismissal was upheld. |
Findings and Conclusions:
Prior to making a decision on the matter, I must examine if the complainant’s dismissal was substantively fair and also whether or not the procedures used by the company were fair. I note firstly that two of the four allegations investigated, namely the assault on Mr A on Friday 25th January 2019, as well as complaints of bullying and harassment in the workplace, were upheld and that both of these were deemed by the Investigator and the chair of the disciplinary hearing to constitute major and gross misconduct. In relation to the first allegation, I note that the complainant was accused of breaching the respondent’s bullying and harassment prevention policy following an alleged assault of a colleague, during “a work associated event”, in a pub after working hours on Friday 25th January 2019, despite no evidence being provided to suggest that this policy was ever accepted either by him or his trade union. While it was claimed by the respondent’s representative that this policy was produced during a previous investigation in which the complainant was involved, I do not consider that this represented an acceptance of same by him and would most likely also have been challenged if he had been dismissed at that juncture. In any event, even if the bullying and harassment prevention policy was considered to have been accepted by the complainant, I do not believe that the gathering of 25th January 2019 met the definition of “a work associated event”, set out in the aforementioned policy. Specifically, the gathering in question was a drinks celebration organised by two apprentices in the company to celebrate both the attainment of their qualification and mark their departure from the company and was not funded or abetted in any way by the respondent. It is therefore difficult understand how it can be considered “a work associated event”, given that these are defined in the policy as “meetings, conference and office parties”. Indeed, if it was accepted that such a gathering should be deemed “a work associated event” and that the bullying and harassment prevention policy could therefore be invoked, it could also apply in circumstances also where there was an alleged incident during a football match organised by work colleagues or even over the course of a colleagues’ weekend away. Clearly this is not realistic or practicable and accordingly, I am of the view the alleged assault of 25th January 2019, should not have been investigated by the respondent under the stated policy and should therefore not have formed part of the justification for the complainant’s dismissal. Having carefully reviewed the witness statements gathered during the course of the investigation, I am satisfied that there was sufficient evidence to uphold the allegations made against the complainant in relation to the second allegation, namely alleged bullying and harassment in the workplace and consider that the finding of major misconduct was appropriate in line with the company’s disciplinary policies and procedures. Specifically, I believe that it was reasonable to conclude that the complainant breached the respondent’s disciplinary rules and procedures by “rudeness towards… other employees, objectionable or insulting behaviour or bad language”, given the details provided in the witness statements, notwithstanding the complaint’s protestations to the contrary. While I note that the respondent’s disciplinary rules and procedures consider that this should be considered as major misconduct, and that the appropriate disciplinary action in this instance is a final warning, there is insufficient clarity as to what the basis was for both the investigator and the chair of the disciplinary hearing to find that this also constituted gross misconduct, as it is not clearly outlined either in the findings of the investigation issued on 7th March 2019 or in the disciplinary outcome issued on 20th March 2019. I consider that if it was indeed considered to be gross misconduct the reasons for this should have been clearly set out by both the investigator and in the disciplinary outcome letter given the seriousness of such a finding. I also note that while the respondent’s representative highlighted that, according to the disciplinary rules and procedures, spent warnings can be used in certain limited circumstances and the complainant had been previously issued with a final written warning which was spent by the time these allegations were presented, there is no reference to any previous warnings in either the investigator’s findings or the letter of dismissal. I would have expected that if a previous, spent warning was being used by the respondent to justify the finding of gross misconduct in respect of the bullying allegations, this would have been outlined and referred to in both the investigation letter as well as in the disciplinary outcome. As well as failing to distinguish between the findings of gross and major misconduct in either the investigation or disciplinary outcome letters, I cannot understand why the process provided for the investigator to make a decision on whether or not or not the complainant’s behaviour constituted either gross or major misconduct given that he should only have concerned himself with gathering the facts and left any findings of fact to be decided upon by the party chairing the disciplinary hearing. Specifically, where a company’s disciplinary procedure provides for a disciplinary hearing, as it does in this instance, an investigation should only summarise the facts and provide an explanation as to why the investigator feels there is sufficient evidence to warrant the matter being referred to a disciplinary hearing. Indeed, given that the investigator found that the complainant’s actions constituted major and gross misconduct, I consider that such findings were prejudicial to the disciplinary hearing and cannot understand what the purpose of this subsequent hearing was, given that findings had already been made. I would respectfully suggest that training should be provided by the respondent to those conducting investigations in future and wish to highlight that it would also be very useful if terms of reference are presented in advance to employees under investigation, which clearly set out both the role of the investigator as well as that of the disciplinary chair. I also note that the complainant’s representative highlighted that he should have been given the opportunity to cross examine witnesses during the course of the investigation, given that it involved findings as opposed to a gathering of facts Having reviewed the relevant case law, it would appear that the complainant’s position in this regard is supported by the High Court from a review of its decision in the matter of NM v Limerick and Claire Education and Training Board (June 2017). In this case, the Court drew a distinction between investigations which are fact-gathering, and those which go further to make final determinations in respect of allegations. The Court also noted that the principles of fair procedures apply in the final determination of complaints and held that the applicant in question was not entitled to cross-examine witnesses at the investigation stage, where the investigation was an information-gathering exercise only. Given that the investigator made final determinations in respect of allegations in the instant case however and were more than an information gathering exercise, the complainant should have been given the opportunity to cross examine witnesses As a result of the clear and fundamental procedural breaches I have highlighted in in the investigatory process as well as the lack of detail surrounding the findings of gross misconduct, I conclude that this complaint is well founded. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Having decided that the complaint was well-founded, I must now examine the appropriate form of redress. Given the reasons behind the complainant’s dismissal, the fact that he has secured alternative employment elsewhere and his preference for compensation as a remedy, I consider that this is the appropriate form of redress in this case. In assessing the amount of compensation to award, Section 7 (1) (c) (i) of the Acts states that I may award “any financial loss attributable to the dismissal”. Section 7(3) of the Acts further states: “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”; Given that the complainant had over 10 years’ service with the company, his accrued redundancy entitlement, which he lost as a result of his dismissal, amounted to €13,200. I also note that while he commenced with a new employer approximately 10 weeks after the hearing, he failed to produce any documentary evidence of any attempts to mitigate his loss in the intervening period. While he stated that such evidence could be produced after the hearing, such evidence cannot be tested by the respondent and cannot therefore be relied upon. I must take into account this absence of documentary evidence for the purposes of calculating the financial loss in respect of the break of employment and consider therefore that an amount €4,750 is appropriate in respect of this period. I note also that his new employment has a lower level of remuneration and have estimated an amount of €17,500 in respect of his future losses. The total financial loss attributable to the dismissal is therefore €35,450. I must recognise however that the complainant, through his actions, contributed substantially to his dismissal and was particularly struck by the witness statement of Mr A, who while not wanting him to be dismissed, was clearly very negatively affected by the complainant’s treatment of him. In recognising his contribution to the dismissal, I have reduced by 60% the size of the award I would otherwise have made and decide that an amount of €14,180 payable by the respondent in respect of the unfair dismissal is just and equitable. |
Dated: 16th December 2019
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill