ADJUDICATION OFFICER DECISION
A Support Worker
An Adventure Centre
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
There is only one unfair dismissal complaint and accordingly complaints CA-00029724-001, CA-00029747-001 and CA-00029748-001 were withdrawn at the hearing.
The complainant commenced employment with the Respondent on July 18th, 2016 and his employment was terminated on January 30th, 2019.
Summary of Respondent’s Case:
The Respondent provides rehabilitative support and programmes.
The complainant commenced his involvement with the Respondent initially under a CE Scheme as part of his own rehabilitation programme. He was dismissed for gross misconduct January 30th, 2019 following an investigation of a number of incidents.
He did not appeal the decision to dismiss. It is the Respondent’s position that the complainant was not unfairly dismissed and the incidents which took place amounted to gross misconduct on the part of the complainant.
In November 2018, the complainant’s status changed, and he was offered relief hours as an assistant to the Support Working team.
Since commencing employment with the Respondent, the complainant has been the subject of a number of complaints from other staff members. On July 4th, 2017 he received a verbal warning about adhering to his working shifts and breaching confidentiality in the workplace.
A further verbal warning was given to the complainant on August 8th, 2017 following another breach where the complainant approached a student inappropriately. A disciplinary hearing was held on October 24th, 2017 and following that a decision to issue a written warning was made and that written warning remained on the complainants file for 12 months from this date. On December 6th, 2018 an incident occurred that involved the complainant relating to an inappropriate interaction with other staff members.
On 24of January 2019, a manager received an anonymous phone call from a female volunteer on informing him that she had received vulgar text messages of a sexual nature from the complainant.
Following this incident, a meeting was called with the management of the Respondent and the complainant on the 24 of January 2019.
At this meeting, a number of allegations were put to the complainant for comment in respect of the allegations. At this meeting the complainant admitted to engaging in an inappropriate sexual contact with a past service user. This is of significant importance given that service users, past and present, are in vulnerable positions.
At this point, the complainant was suspended on pay to allow management to investigate the matters further.
A disciplinary meeting was held on 30 January 2019 and the decision was made to dismiss the complainant.
The complainant was subsequently dismissed for gross misconduct on January 30th, 2019 and was orally given a right to appeal the decision, but he did not do so.It is the Respondents position that the complainant was not unfairly dismissed but was dismissed due to gross misconduct.
The complainant was given verbal and written warnings prior to being invited to a disciplinary meeting. Following the disciplinary meeting, the complainant was dismissed and afforded the opportunity to appeal the decision which the complainant did not avail of. The Respondent relies on section 6 of the Unfair Dismissals Act, 1977 and says that the complainant’s conduct makes his dismissal fair and warranted.
Furthermore, the complainant failed to follow the grievance procedure and did not appeal the decision to dismiss despite being given the option to appeal.
In Melinda Pungor v. MBCC Foods (Ireland) LtdUD/548/2015 it was held that the complainant’s failure to appeal her dismissal was fatal to her claim for unfair dismissal. The Employment Appeals Tribunal stated:
The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.
In Aryzta Bakeries v. Vilnis Cacs UD/17/106 it was held:
…there is an obligation on the complainant to exhaust available internal procedures and that the complainant failed to do so.
The obligation is to exhaust internal procedures. In circumstances where a Claimant has failed to do so by appealing the decision, the complainant cannot then claim there was an outcome which was unfair in some material way.
The complainant mitigated his loss and was employed within a week of being dismissed from the Respondent.
Summary of Complainant’s Case:
Regarding the first allegation made against the complainant it concerned an interaction in December 2016 of a ‘flirtatious’ and disrespectful nature with a co-worker.
This allegation reached the management team on January 22nd.
At that meeting the management team also came to know that the complainant had been in contact with a former user of the service. The complainant says that she was a friend and that he was just keeping in touch.
A third allegation against the complainant arose from an anonymous telephone call to the effect that she was receiving text messages of a sexual nature from the complainant, and that others had also received them.
A disciplinary meeting was convened two days later on January 24th to consider these three allegations.
In the course of the meeting the complainant accepted that he did contact a former service user. He did not respond when it was put to him that such contact was a breach of policy.
Following the meeting the respondent contacted its HR advisor which apparently advised that the respondent should proceed to terminate the complainant’s employment on the basis of his ‘gross misconduct’.
He was invited to a further meeting on January 30th called to ‘recap on the allegations/admissions and look at the outcomes’ and his employment was terminated at this meeting.
Findings and Conclusions:
The core facts are well set out in the narratives above in the submissions of the parties.
It is important to note that the respondent’s service users are vulnerable as they are in the course of a programme of rehabilitation.
It is also relevant to note that the complainant had been a user of the service in the period immediately before he became an employee.
To summarise, the respondent was in receipt of three allegations against the complainant, one of which came by means of an anonymous telephone call.
That anonymous call was received on the same day as the disciplinary hearing and about half an hour before it commenced, and clearly after it had been convened.
Reference was made in the course of the hearing to an internal investigation.
To describe what happened as an investigation would be stretching things, and indeed, based on the evidence, nothing resembling a fair investigation took place.
The requirements for a fair investigation are not onerous. But the complainant was not even interviewed, (unless the first disciplinary meeting is being represented as the investigation).
Then, there was no written report or findings prior to a decision to initiate disciplinary proceedings.
The so-called investigation was totally inadequate for the purposes of a fair disciplinary process.
One of the respondent witnesses, the CEO admitted that he was not even aware of the precise nature of the allegations which conveniently for its purposes were described as ‘inappropriate’ without taking the trouble to specify (or even find out) what made them ‘inappropriate’.
It appears that one of the ‘inappropriate’ comments was ‘blondes are better’. This may be inappropriate, but it is important to refer to it to illustrate that on the wide spectrum of inappropriate sexual conduct it lies at the less serious end, whatever it might mean.
The anonymous caller complainant apparently suggested that the comments she received were ‘vulgar’ but no evidence was presented then or since as to what they were, what made them ‘vulgar’ and certainly they were not shared with the complainant.
While the meeting of January 24th is referred to in the minutes (which is a combined note of both that meeting and the follow up meeting on January 30th) as Disciplinary Minutes of Meetings there was no evidence of the complainant being told in writing in advance of the January 24th meeting that he was being invited to a disciplinary meeting, what the charges were, his rights to representation or the possible outcome.
The first ‘disciplinary’ meeting concluded with the complainant being suspended.
Following this meeting, the senior managers who attended took advice from their HR advisors and concluded that one of the incidents (which the complainant stated had taken place four or five months earlier) was gross misconduct and that they had to terminate his contract of employment.
So, without any charge of gross misconduct ever having been formally put to the complainant, or any hearing on the matter specifically being held a decision was taken that he had been guilty of such a charge.
(The respondent CEO stated at the hearing that the complainant was told after the first meeting that ‘he might’ be facing a charge of misconduct but he confirmed that this did not appear in any written form).
The second ‘disciplinary’ meeting is described in the minutes as being ‘a recap on the above allegations/admissions and look at the outcomes’.
This is all entirely unsatisfactory, and unfortunately it gets worse.
It will be recalled that according to the ‘minutes’ the decision to terminate the employment had been taken even before this second meeting took place. Also, given that no separate note of the first meeting had been produced the complainant was not given the opportunity to comment on the record of the meeting.
Interestingly, the minute records the complainant as saying that ‘he was struggling in various areas of his life’ but that did not appear to elicit any reaction from the managers present or to be considered as mitigation, which given the complainant’s initial engagement with the respondent is surprising.
This represents such a catalogue of consistent breaches of the complainant’s rights it provides a case study in how not to conduct a disciplinary process. It is hard to find any example within it where the respondent applied fair procedure, apart from not summarily dismissing him without any hearing.
There was no recognisable investigation of the allegations, including the anonymous allegation about which he was given no notice, there was no proper, written notice of the first meeting, no notice of the charge etc, there was total confusion and conflation of the two meetings and their purpose.
One can only wonder at the quality of the HR advice received between to two meetings and why the HR advisors did not query the conduct of the process and its compliance with well-established norms.
In the circumstances, the fact that the respondent has raised a procedural issue about the complainant’s failure to appeal the decision and relied on the decisions of the EAT referred to above is, to put it at its mildest, ironic.
The respondent’s procedures in this case fell so far short of what is required by the demands of fair procedure that the raising of this defence involves the application of a spectacular double standard.
Nonetheless, I am required to consider this submission and the decisions of the EAT.
In the first place, there is no reference anywhere in the note of the meetings that the complainant was given a right to appeal.
The respondent evidence to the hearing was that he was told verbally (i.e. orally) of the right to appeal.
Secondly, and more critically, in the section of the written statement of the complainant’s original terms of employment/contract the following reference to an appeal appears;
‘He/she may appeal to the Employment Appeals tribunal or other appropriate person. If a decision of dismissal is taken at the conclusion of the above [disciplinary process] and the participant wishes to challenge the dismissal, then in accordance with normal procedures the matter shall be referred to a Rights Commissioner, the Labour Relations Commission, the Labour Court, or the Employment Appeals Tribunal’.
It is quite clear from this that the respondent procedures contain no provision for an internal appeal. (it will be noted that most of those external bodies are now within the Workplace Relations Commission.)
It is bad enough that the respondent deprived the complainant of practically every accepted right to fair procedure but that it should then seek to rely on an alleged procedural breach by the complainant of a right which he clearly was not accorded and therefore could not have exercised places this in a quite different category. It is quite unacceptable.
I do not accept that the respondent submission that the complainant was offered a right of appeal. This has been constructed purely for the purposes of the hearing and reflects little credit on the respondent.
The complainant was the victim of an unfair dismissal of an extremely serious nature and at the outer limits of the spectrum of gravity.
The conduct of the respondent and its treatment of the complainant was reprehensible in general but more so in that it tolerated a damaging reference to alleged sexual misconduct that was vague, unspecified and unproved and permitted it to hang in the air without a full and proper investigation. No such allegation has been proved against the complainant.
It is fully accepted that the respondent does important work for society and works with vulnerable adults, but this does not relieve it from the responsibility to apply fair procedure in disciplinary processes.
I find that it did not do so in this case.
The complaint is well founded and it succeeds.
The complainant was without work for a full month and is experiencing continuing losses of approximately €75 per week.
I consider it unlikely that he will find employment in the near future that will match his income with the respondent and this is reflected in my award.
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.
Complaint CA-00029719-001 is well founded and I award the complainant €5,000 in respect of his losses attributable to the dismissal.