SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
UNITED PARCEL SERVICE CSTC IRELAND LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Mr Hall
1. Appeal of Adjudication Officer Decision No:ADJ-00012865 CA-00016959-002.
2. The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 4 June 2019 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 20 February 2020. The following is the Determination of the Court:-
This is an appeal by United Parcels Service CSTC Ireland Limited against the decision of an Adjudication Officer ADJ-00012865, CA-00016959-002 under the Unfair Dismissals Act 1977 – 2015 (“the Acts”) in a claim of unfair dismissal by Ms Andrea Kiss.
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Andrea Kiss will be referred to as “the Complainant” and United Parcels Service CSTC Ireland Limited will be referred to as “the Respondent”.
The Adjudication Officer held that the dismissal was unfair and ordered the Respondent to pay her €37,500.00 - estimated as her loss over the two years following her dismissal.
The Complainant was employed as a General Ledger Staff Accountant from September 2015 and was dismissed on 27th July 2017.
The Complainant lodged her claim with the WRC on 21st January 2018, the hearing before the Adjudication Officer took place on 9th October 2018, and her Decision was issued on 26th April 2019. The Respondent referred its appeal to the Labour Court on 4th June 2019.
The Complainant was employed as a General Ledger (Level 2) Staff Accountant in September 2015. Her place of work was the financial offices in City West. On 26th September 2016, another employee of the respondent, Mr X, made a formal complaint of sexual harassment against the Complainant. Mr X listed seven instances of alleged sexual harassment over a period of several months in 2016:-
- i.The Complainant waiting for him in reception of an evening.
ii.The Complainant waiting for him in the car park in the mornings.
iii.Constant sending of messages in work until Mr X blocked her.
iv.Two occasions where the Complainant approached him in front of colleagues, the first occasion ‘asking him out’ and the second approaching him in front of colleagues.
v.The Complainant staring at him at the company BBQ.
vi.Another employee told Mr X that the Complainant was following him on Facebook.
vii.Following him in the workplace.
A copy of this complaint was provided to the Complainant who was invited to make a written response if she wished. A manager was appointed to investigate the complaint with support from a designated member of HR. The Complainant made a written response in advance of meeting the investigators. In her response, the Complainant set out a narrative of several months regarding her interactions with Mr X.
The matter was the subject of an investigated under the Dignity at Work Policy. The investigator’s report which was issued on 16th November 2016 upheld two of the allegations (iv and v) and concluded that the Complainant had behaved in an unprofessional manner towards Mr X. It found that there had been a breakdown in the working relationship between them and recommended that the Complainant and Mr X should meet together with HR in order to explain any misunderstanding and to foster a good working relationship.
The Complainant appealed the outcome of the investigation. This process overturned one of the two allegations which had been found against her. The Complainant agreed to mediation however, as Mr X declined, mediation did not take place. On 12th December 2016 the Complainant wrote to HR informing them that if Mr X did not engage in mediation, she would make a complaint of sexual harassment against him.
On 20th December 2016 the Complainant made a formal complaint against
Mr X, alleging sexual harassment, bullying and lying. The specific points of the Complainant’s grievance were:-
- i.The interactions between them in 2016 were now unwelcome as he never had any intention of asking her out.
ii.Lying to the Complainant about having a girlfriend.
iii.Mr X having made a complaint against her.
iv.Mr X complaining about the Complainant asking him out in June 2016.
v.Mr X having avoided her after she had asked him out.
vi.Mr X not engaging when she approached him in September 2016.
vii.Mr X’s decision to decline mediation.
The Complainant’s complaint was investigated by a new panel of investigators. The outcome of the investigation was issued on 13 March 2017. The key findings of the investigation were:-
- •The Complainant confirmed that her interactions with Mr X were not unwelcome to her.
•Mr X confirmed he had lied to the Complainant about having a girlfriend to avoid hurting her feelings when he realised, she wanted to be more than friends.
•Mr X had told the previous investigator he had lied about having a girlfriend.
•Mr X’s complaint had been made in good faith though it was not upheld in its entirety.
•There was an unresolved dispute between the parties as to the precise words used during the 29th June 2017 incident though the sequence of events was not in dispute.
•The relationship between the parties had broken down and they should not interact unless it was necessary for work. That any professional interactions should be civil and courteous and that this“lack of interaction protects both from any misunderstanding and/or exposure to further allegations.”
•Mr X’s decision to not engage with the Complainant unless it was on a work-related matter did not constitute unprofessional or unacceptable behaviour.
•That Mr X declining to engage in voluntary mediation did not constitute bullying and that this part of the complaint was malicious.
None of the allegations made by the Complainant were upheld and one was found to be malicious. The matter was put forward for a disciplinary hearing regarding the making of a malicious complaint.
The disciplinary hearing took place on 28th April 2017 concerning the allegation that the Complainant had made a malicious complaint. It concluded that while the decision of Mr X not to engage in mediation was not bullying, the complaint by the Complainant had been made in good faith.
On 2nd April 2017, the Complainant made a further complaint alleging that the two previous investigations had been biased, flawed and unfair on her. The Respondent informed her that it could not conduct a third investigation into the same set of facts but offered her a review of the process. A review was undertaken by HR. The outcome of which was issued on 25th May 2017. It did not uphold her allegations and found that the complaint did not constitute a legitimate grievance.
The Complainant was successful in a competition for a Level 3 post and was promoted on 22nd May 2017 to General Ledger (Level 3) Staff Accountant.
On 29th May 2017 the Complainant sent an email to Mr Y, a colleague and friend of Mr X and on 12th June 2017, she sent an email to Mr X, as a result of which Mr X made a second formal complaint of harassment and bullying against the Complainant. He alleged that there had been an attack on him, and his character and her correspondence was not welcome.
The matter was investigated, and a report issued on 27th July 2017. It found that the Complainant had never disputed that she wrote and sent both emails; the outcome upheld the allegations against the Complainant and the matter was put forward for a disciplinary hearing. It concluded that the Complainant’s actions were such as they were most likely to continue, and she was unable to engage in a professional manner with Mr X or to simply leave him alone. Therefore, it made the decision to summarily dismiss the Complainant. The Respondent informed the Complainant of her right to appeal.
The Complainant appealed her dismissal by letter dated 31st July 2017, an appeal meeting was held on 9th August 2017. The outcome of the appeal was issued on 21st August 2017, which upheld the decision to dismiss.
Summary of the Respondent’s Position
Mr Conor O’Gorman, Ibec, on behalf of the Respondent stated that the fact of dismissal was not in dispute. He said that the Complainant’s dismissal resulted wholly from her own conduct and submitted that her dismissal was both substantively and procedurally fair. He said that at all times throughout the process, the Respondent acted in accordance with the company union agreed disciplinary procedure, SI 146 of 2000 and the principles of natural justice and fair procedure. At all times the Complainant was aware of the allegations against her; she was given the right to be represented at meetings; all witnesses named by both parties were interviewed; she was made aware of the potential outcome of the process; she was given details of who the decision maker was, and she was provided with minutes of all meetings. At one point the process was suspended at the Complainant’s request to allow for her to take legal advice.
Mr O’Gorman said that in response to Mr X’s complaint dated 26th September 2016, the Complainant’s set out her version of events. She said that Mr X and herself had been on friendly terms, playing table tennis during breaks and she attended a charity event which Mr X took part in. He said it was clear that the Complainant developed feelings for Mr X and was unsure if he felt the same. She explained how she approached Mr X in June 2016 and said;“something along the lines of... I am mad at you for sending me such mixed messages, sometimes you are so eager and obvious, other times you ignore me and it’s alright if you don’t want to ask me out, I just wish you’d make up your mind”Mr X responded by saying he had a girlfriend.
In her statement, the Complainant said she sent him the following message :
• why are you acting like you’re mad at me?
• you rejected me
• at least I made a move
• it wasn’t easy you know
• if you want to pretend you haven’t been thinking about it as well, that’s fine
The statement goes on to deny the seven instances in Mr X’s complaint and refers to him several times as a “liar”, “I am not the only one who noted that Mr X has a habit of lying”, several references to Mr X not having a girlfriend and the accusation that Mr X’s complaint suggested;“malicious intent or some other form of disturbed thinking”.
Mr O’Gorman said that when the Complainant wrote to HR on 12th December 2016 informing them that if Mr X did not engage in mediation, she would make a complaint of sexual harassment against him, HR responded explaining that the process of mediation was voluntary, and Mr X was within his rights to decline the invitation. He said that in that letter, the Complainant was instructed not to have contact with Mr X, as both:-
- “work in completely different teams and as such there is no need/or either of you to interact/communicate with each other from a task perspective, however should the need arise you are expected to be courteous and professional at all times — an expectation that has been made clear to both of you”
Mr O’Gorman said that when Mr X declined to go to mediation, the Complainant’s referred a formal complaint against Mr X on 20th December 2016. The Complainant’s complaint was investigated by a new panel of investigators.The Complainant provided a document as part of the process, it contains the following statements:-
- •if he didn’t [have a girlfriend], that makes it more likely he indeed fancied me.
•despite having great qualities, Mr X seems to have a problem with lying an awful lot.
•I maintain that when I asked him to make up his mind on June 29th, he took it as a rejection and started acting like an immature child who didn’t get what he wanted...
•Three other guys from UPS asked me out since I started... none of them act or ever acted this way, supporting that what Mr X has been doing is completely unreasonable
•I think it is clear by now that for a few months we were attracted to each other and on June 29th 1 brought this up..., it can’t be established who rejected whom… it was me who had enough and wanted to change the situation… hence me going up to him.
On 2nd April 2017, the Complainant made a further complaint alleging that the two previous investigations had been biased, flawed and unfair on her. This was reviewed and not upheld.
Mr O’Gorman said that between September 2016 and the date of the Complainant’s dismissal, Mr X did not contact her, speak to her or have any interactions with her, and the Complainant had no reason to contact Mr X at all. However, at the end of May and on 13thJune 2017, the Complainant sent two emails, the first to Mr Y, a friend and colleague of Mr X and the second to Mr X. In her email to Mr Y on 29th May 2017, the Complainant repeatedly referred to Mr X as “liar, narcissist" and “a school boy in love”.
Mr O’Gorman said that the language used by the Complainant in her emails to Mr X was highly inappropriate and so extreme that no employee, under any circumstances, should be expected to tolerate it. To receive, via a business email, from a colleague, a message which refers to Mr X as :-
- “nothing but awful”, “ I feared you’ll attack me”, “telling lies”, “you’re shameless, arrogant, manipulative”, “you might fool certain people... by playing the victim”, “you seem intimidated by girls”, “1 liked you regardless”, “you couldn’t ask for a more loyal passionate person than me”, “you are not a healthy individual , “sometimes I think you are pure evil”, “if I wanted to take revenge on you for ruining my life I would have done that a long time ago”, “The way you couldn’t hide your attraction to me was really sweet and you can never take that away from me, so I do want to thank you for that.”
Mr O’Gorman said that the email and the language therein was also found to constitute bullying, as it was consistent with a pattern of behaviour, she had displayed towards Mr X over nearly 12 months. The Complainant expressed no remorse for her actions or regret for having sent the emails. For the most part, the Complainant sought to use the meeting to revisit the events of the previous investigations and make further accusations against Mr X. Furthermore, Mr O’Gorman stated that the Complainant’s actions and behaviours in sending the emails; her response to the investigation; and the disciplinary and appeals meeting, indicated that she was not willing to let matters between her and Mr X rest. The disciplinary manager, in reaching the decision to dismiss the Complainant, had felt that it was likely the Complainant’s pattern of behaviour would continue.
Mr O’Gorman addressed the Complainant’s contention that she had sought and received authorisation from the manager who conducted the investigation which concluded on 25th May 2017, to contact Mr X and Mr Y. On the contrary, Mr O’Gorman said that when the manager was interviewed, he stated that not only did he not give the Complainant authorisation to contact Mr Y, but in fact, he had instructed her not to contact him or anyone else in relation to the investigation.
Finally, Mr O’Gorman said that as the Respondent has a duty of care to all employees, therefore, based on what had gone on since September 2016, it was reasonable to conclude that if the Complainant had remained in the workplace, Mr X would continue to experience the same treatment.
Summary of the Complainant’s Case
The Complainant appeared before the Court as an unrepresented party. She presented a very detailed written submission to the Court. She told the Court that she has been trying to prove that the complaint of sexual harassment made by Mr X was malicious and false and she has exhausted all avenues in the Respondent to clear her name. She said that in her desperation to improve the situation and to be able to continue working she sent the email to Mr X, following which he made a complaint about her which lead to her dismissal. She said that she was still very much confused about Mr X’s behaviour and did not fully realise or wanted to believe just how malicious he was.
For a long time, she tried to see the good in him and put his extremely strange behaviour down to shyness at first but having read extensively about abuse and bullying since, she now sees the red flags that were there from the beginning.
She described how they got on well when she joined the company, regularly played table tennis and she was invited to attend a charity event he was involved in. She said that after that evening, she started to suspect he was attracted to her. He seemed to show interest in her for the next several weeks. She said that she was flattered by his attention and interest at the time and would not have been against him asking her out. However, she then began to think his behaviour was strange, inconsistent and unpredictable, he would walk by her for no apparent reason, she said that she could sense him staring at her and when she looked at him, he looked away. She said that sometimes he seemed delighted to see her and other times he would shift his attention to someone else. She said that he told her lies about living alone and the price he paid for a table tennis bat. She said that he claimed credit for someone else’s work. She surmised that this spoke volumes of his character as it is often cited as a hallmark of a bully. She contended that this confirmed him as a known habitual liar, even before making his sexual harassment allegations about her.
She said when he invited her to a second charity event in June 2016, he made it clear he had sexual thoughts about her, it was essentially a date as he kept touching and hugging her throughout the evening. He was very attentive to her the following week. However, thereafter, she found his behaviour very frustrating and thought he was just playing games with her, the way some people do at the start of a relationship, not wanting to seem too eager. She said that from her readings about abuse and bulling she knows most people experience this confusion, which is apparently a typical way for abusive people to behave.
The Complainant said that he basically reacted like she was rejecting him, and she ruined his game and had started punishing her for it. She said that this was the turning point in her relationship with him, so that was the reason she approached him. She said that she wanted to end the uncertainty, so on 29th June 2016 she told him that she was mad at him for giving her such mixed messages. And told him that it’s alright if he did not want to ask her out, but she just wished he would make up his mind. He said that at that point he told her he had a girlfriend. She did not believe him as it sounded like he was coming up with a lie just to save face, which he later admitted to during the investigation. She said that of course she felt rejected and didn’t understand his actions.
She said that she ignored him after that and in the second half of August 2016, he started acknowledging her again and staring at her again and saying hi to her. Since he was finally looking like he was coming around, she decided to approach him to ask him if he was willing to end the tension between them. On 23rd September 2016 she asked him “can you just be nice to me for two minutes”, to which he said he was ‘busy’ refusing to talk to her. She said that she clearly expressed that she did not like his behaviour, by his refused to talk to her. The following workday on 26thSeptember 2016 he filed a sexual harassment complaint against her. She totally denied the allegations made and surmised that he had deliberately omitted material facts, his complaint was lacking in detail, misleading, manipulative and deceiving.
The Complainant alleged that the investigation process was unfair to her and alleged that the Respondent refused to take into account her text messages to a friend about the matter. She explained how this complaint greatly upset her as she felt it was malicious and not made in good faith. The Complainant said that being falsely accused of something this serious and humiliating was horrendous, and she kept bursting into tears everywhere, including at work, as a result she was sent to the company doctor. She also found the process very stressful as it took a full month to complete and she just wanted it to conclude to be cleared of any wrongdoing. It was a very difficult time for her as she was studying for exams and working towards a promotion. She was disappointed when the mediation did not proceed as it would have been the preferable way to proceed and surmised that he declined it as he did not want to face her and be held accountable for what he did.
She said that she filed her complaint against Mr X on 20th December 2016, as he ruined her name and reputation within the company, and she wanted the Respondent to acknowledge it was a false complaint as he knowingly made false statements. She said that she took his refusal of mediation as confirmation that he did not see anything wrong with what he did, and that his intentions were indeed malicious. She submitted that she was treated unfairly as her complaint was not dealt with for three and a half weeks whereas Mr X’s complaint had been dealt with swiftly. She rejected the Respondent’s excuse for the delay which it stated was due to the Christmas season. When an investigation meeting was set up for 12th January 2017, she said that she found the process abusive, threatening, hostile and dishonest. She said that when asked to provide specifics of her allegations against Mr X, she had various information printed out from books about bullying, with relevant sections highlighted that matched Mr X’s behaviour. However, when she attempted to give this to the investigator, he did not want to accept it, giving her the impression that she was not being taken seriously.
On 2nd April 2017 the Complainant wrote a 9000-word email to the Respondent seeking a review of the previous investigations and her promotion. She said that she wrote this email to try and clear her name as she felt very strongly about the accusations made against her. She said that she was in a constant state of stress and with her upcoming disciplinary hearing, she sought time to speak to her solicitor. She referred to one day in the office when she was visibly distressed and was not offered help, or even a kind word.
As a result of her 9000-word email of 2nd April 2017, the Respondent set up a meeting with her. A person from HR also joined the meeting and while she said that she experienced no hostility at the meeting, the investigators were not concerned about the bullying complaint against her as it had already been investigated but were only interested in how the investigation was conducted by management. She said that she also questioned the reasons behind her promotion and why she was given this promotion.
At a meeting on 19th May 2017, the investigators tried to tell her that the matter with Mr X was over and she needed to get past it. She felt like the Respondent used the disciplinary hearing as a way to cease her in pursuing the issue and to graciously let her off the hook. She told them that she did not feel safe from this man, because he was allowed to get away with filing a false complaint and telling appalling lies without any consequences, however, the Respondent did not want to address this. She said that she strongly maintained that she did nothing wrong up to that point. She said that she was told several times things like“[Mr X] wants to move forward”,“he has no problem with me”, that he was repeatedly insisting it was all“done and dusted”and just wanted to move on. They told her they had investigated everything, and that she should let this go.
At the end of the meeting she asked if she could contact Mr Y to talk about what happened as she wanted him to prove that Mr X was lying. She said that they told her“I think you should just let this go and I don’t recommend it, but I don’t see any reason why you couldn’t contact him if you wanted to.”
The Complainant said she spent the next ten days writing a lengthy email to Mr Y which she sent on 29th May 2017. She said that she felt confident that he would be open to talk to her and that he was a witness to events. She wanted to tell him her side of the story. She said she wrote this as the tension between Mr X and herself was still there and since April 2017, he had started to acknowledge her again, he was being friendly again as she was now on the same floor as him since her promotion. She said that while it was a major relief on one hand, it was a major concern on the other and she was worried that he was setting her up. This she regarded meant he was essentially still keeping her under his control, which majorly contributed to her mixed feelings. Therefore, on 12th June 2017 she decided to send him an email. She wanted to know why he was saying “hi” to her and pretending like nothing happened. She was obviously angry about what he did, and she wanted to let him know it was not alright. The Complainant said that she understood that a few things she said in the email would be inappropriate, but she did not believe it would justify getting fired for it. She was then suspended for sending the email.
The Complainant said that in the investigation that followed the Respondent only focused on her email and it was not interested in hearing about the year of mistreatment she suffered leading up to it. She felt like she could not make an argument in her defence.
She said that at the disciplinary hearing that followed, her requested colleague declined to attend an hour before the meeting was scheduled to start, and she was not allowed to have a solicitor present. She denied the Respondent’s asserted reason for her dismissal and disputed it contention that she would have continued in her actions against Mr X and not have been able to engage in a professional manner. She said that she had left Mr X alone for a year and had not made any contact with him and his sudden changes prompted her to contact him for the first time in nine months.
In conclusion the Complainant stated that her dismissal was entirely disproportionate and unfair.
Findings and Conclusions
Following an investigation of seven grounds of complaint made by Mr X in September 2016, one of the grounds of complaint was, ultimately, upheld and the Complainant was found to have acted in an unprofessional manner towards Mr X.
A disciplinary process was not deemed to be required and HR offered the parties a mediation-type intervention, but this was not agreeable to Mr X and did not proceed.
While the employer did exercise a level of understandable leniency here in not initiating a formal disciplinary process, the Complainant was nevertheless warned in writing in relation to her interactions with Mr X. She was instructed not to have contact with him, and HR made clear the expectations of her in this regard going forward.
The Complainant, in a somewhat questionable turn of events, then issued an ultimatum to Mr X; that he agrees to engage in mediation with her, and failing his agreement, she would initiate a formal complaint against him. When he did not accede to that ultimatum the Complainant followed through and issued a formal complaint against him, effectively a counter-complaint. This set out seven grounds of complaint. These complaints were investigated, and all were found to be without merit.
The investigation further found that one of the seven complaints made by the Complainant may have been made maliciously and this matter was referred on for a disciplinary process. Ultimately it was found that this particular complaint was made in good faith and no disciplinary action was taken. However, the employer did make it clear to the Complainant that it considered that the matters between her and Mr X were now closed, and the Complainant was effectively told to move past it.
Matters did not rest there, however, and the Complainant made a further complaint to HR that the two investigation processes which had taken place were in some way flawed and were unfair to her. HR, not unreasonably, declined to commission a third investigation but did agree to a review of the matters. This was conducted by a member of HR and a member of management. On completion of the review it was concluded that there was no basis for a legitimate grievance by her.
Once again, during the course of face-to-face engagements during this review, and in writing at the conclusion of the review, the Complainant was expressly told that matters were now considered closed by the employer and that she should move on from it.
The Complainant did not, however, move on from it. The Complainant alleged that at the conclusion of the aforementioned review, the two members of management that conducted the review gave“explicit permission”to the Complainant for her to make direct email contact with Mr Y, who had been one of the witnesses in the earlier investigations.
Having regard to the information put before the Court regarding the numerous declarations by the employer that it considered matters closed and the clear directives to the Complainant to put matters behind her, the Court finds it highly improbable that the managers in question would have given the“explicit permission”alleged by the Complainant.
The Complainant proceeded to make email contact with Mr Y and followed this up with email contact directly to Mr X. The content of the lengthy emails to both Mr X and Mr Y was deemed to be highly offensive, inappropriate and unacceptable and was deemed to constitute bullying. This led to the Complainant’s dismissal for gross misconduct.
Having regard to the very particular details of this unfortunate case, the Court is fully satisfied that the decision to dismiss the Complainant was within the range of reasonable responses open to the employer.
The Court was particularly struck by the fact that as far back as the first investigation, the Complainant was instructed to have no contact with Mr X and was warned as to any future interactions with him. Thereafter, there were a number of occasions in which the employer made it very clear to the Complainant that it considered matters closed and she was told to let things go and move past the issues. Throughout, the employer displayed levels of leniency and patience in what were very sensitive and difficult matters.
The final emails sent to Mr X and Mr Y were clearly highly objectionable in content. They were in stark contravention of the employer’s clear directions to the Complainant and demonstrated a contempt for the employer’s efforts to deal with the difficulties which had endured over a significant period.
That the employer believed that matters could not and would not be let lie by the Complainant was an understandable conclusion on their part having regard to the circumstances, and it is clear that the dismissal was essentially a last-straw and reluctant action within a very unfortunate set of events and circumstances.
In all the circumstances of this case, and having regard to the foregoing, the Court finds that the Complainant was not unfairly dismissed. Therefore, the Court upholds the Respondent appeal and overturns the Adjudication Officer’s Decision.
The Court so Determines.
Signed on behalf of the Labour Court
5 March 2020Deputy Chairman
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.