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SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S) ADJ-00021972 CA-0028838-001 Background The Complainant commenced employment with the Respondent on the 22ndSeptember 2008. His employment ceased on the 20th March 2019. The fact of dismissal is not in dispute. The Respondent’s position is that the Complainant was dismissed for Gross Misconduct Respondent’s case It is the Respondent’s submission that a complaint of bullying and harassment was made against the Complainant on the 29thJanuary 2019 by one of their first- year apprentices. Following on from this they became aware of other issues where complaints had not actually been made including an incident outside of the workplace some five months previous. The Complainant was invited to a meeting on the 29thJanuary 2019 where he was advised of the allegations and placed on suspension pending an investigation. His local shop steward attended that meeting with him. It is the Respondent’s submission that the Complainant offered his resignation at that meeting and that he admitted that the incidents referenced in the allegations had occurred. The Complainant was advised that he should reconsider his decision to resign and that an investigation into the allegations would take place. Mr Anthony Burke Process Manager was appointed to conduct the investigation. The terms of reference for the investigation were: 1) Alleged bulling and harassment in the workplace. 2) Alleged assault on an apprentice on Friday 25thJanuary 2019 3) Alleged attempted assault on an apprentice on 21stSeptember 2018 4) Alleged threats of repercussions in the workplace. On the 30thJanuary 2019 two written statements were received from the two individuals who made the original complaints. The Investigator met with the two individuals on the 1stFebruary 2019 to discuss their statements. Minutes of those meetings were opened to the Court. Arising from those meetings the Investigator met with eleven other individuals who he believed were relevant to the investigation. One of the eleven people the investigator met with was the Shop Steward who had accompanied the Complainant to the first meeting. The minutes of the meetings with the two people making the allegations and the eleven individuals that the investigator met with, were opened to the Court. The Complainant was invited to a meeting with the investigator on the 7thFebruary 2019 and was afforded the opportunity to be accompanied by his Union representative. On the 5thFebruary in advance of the meeting the Complainant was provided with copies of all statements that the investigator had at that point. The investigator had follow-up meetings with some of the individuals. By letter of the 7thMarch 2019 the Complainant was advised that allegations one and two were upheld and that allegations three and four were inconclusive. The Investigator deemed that the behaviour constituted major and gross misconduct and should be escalated to a disciplinary hearing. A disciplinary hearing took place on March 12th2019 chaired by Ms Ann Marie Brady Financial Manager. Ms Brady concluded that the events constituted major and gross misconduct and therefore warranted his dismissal. The Complainant was advised of this outcome by letter of the 20thMarch 2019 and was advised that an appeal could be made within five working days to HR. The Complainant lodged an appeal, and the appeal was heard on the 28thMarch 2019. The outcome of the appeal was to uphold the decision to dismiss, and the Complainant was advised of same by email of the 3rdApril 2019. It is the Respondent’s submission that the Complainant was informed in advance as to the nature of the allegation against him, he was afforded the right to representation and was given the opportunity to respond to the allegations against him. It is the Respondent’s submission that the decision to dismiss was fair in all respects because of the seriousness of the incidents. The Respondent submitted should the Court come to the conclusion that there was some procedural or other unfairness and that the decision to dismiss was unfair then it is their submission that the Complainant contributed one hundred per cent to his own dismissal. In terms of the three forms of redress available under the Act the Respondent submitted that re-instatement and re-engagement are not suitable as the trust between the parties has been irreparably damaged. Complainant’s case It is the Complainant’s submission that he was not afforded fair procedure by the Respondent and that the outcome of the investigation was predetermined. When the Complainant was called to the meeting on 29thJanuary 2019, he was told he was being suspended before being given an opportunity to respond or comment on the allegations that had been made. Two of the people who attended that meeting the Complainant’s shop steward and his line manager were later asked by the investigator to give evidence against the Complainant. It is the Union’s submission on behalf of the Complainant that two of the four complaints are generic in nature and do not reference any specific times or dates which make it impossible for the Complainant to address those complaints. The Union on behalf of the Complainant submitted that the process was fundamentally flawed from start. The Union drew the Court attention to the minutes of the meetings with the various witnesses. The Union submitted that it was clear from the minutes that the witnesses were being actively encouraged by either the investigator or the note taker to make complaints about the Complainant and or to identify other people that they might be aware of who has issues with the Complainant. Some of the information elicited by the investigator from these witnesses referred to issues that had occurred a number of years previously. The investigators expanded the investigation to include these issues without notifying the Complainant that he was doing so. It is clear from the minutes opened to the Court by the Respondent that some of the witnesses who were given a second interview even though initially they had not identified any issues were urged by the investigator and or notetaker to have a rethink. The Complainant prior to his dismissal was not given copies of these second interviews. The Complainant had requested access to CCTV which he felt would support his version of events, no response to that request was ever received. In the letter of dismissal, the Complainant was told for the first time that it was not available. The letter of dismissal also referenced an issue that arose a number of years earlier, at no time during the process was the Complainant told that a warning that was spent would be taken into consideration. It is the Complainant’s submission that he did not contribute to his own dismissal. The Respondent has breached their own policy, they have expanded the scope of the investigation based on information they had extracted from his Shop steward which was hearsay. The investigator informed witnesses of what was contained in other witness statements before those witnesses gave their own evidence, which was a complete breach of fair procedure. The investigator based on their own minutes of the meetings had prompted individuals to make complaints about the Complainant. The Decision maker in respect of the decision to dismiss had taken into consideration a spent warning and had not informed the Complainant that they intended to do that. It is the Complainant’s submission that he in no way contributed to his own dismissal. He was entitled to have any complaint against him investigated in a fair and unbiased manner and that did not happen. In respect of the three forms of redress under the Act it is the Complainants submission that he secured alternative employment albeit at a lower wage within a few weeks and therefore compensation was the most appropriate form of redress. Applicable Law Section 1 of the Act defines dismissal in the following manner "dismissal", in relation to an employee means - a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee b) ....... Section 6(1) states; "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." Issue for the Court Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that there were substantial grounds justifying dismissal. Discussion The Complainant’s case is that his dismissal was unfair as the process that led to the decision to dismiss him does not meet the standard for fair procedure set out in case law. The Respondent opened to the Court the minutes of the meetings with the various individuals which support the Complainant’s contentions that the scope of the investigation was broadened based on unsubstantiated allegations elicited from witness in the course of the interview following prompting from the investigator and or the note taker. It was clear to the Court from the Respondent’s minutes of the interviews with witnesses, that were provided to the Court, that witnesses were informed of what other witnesses said before they were asked to give their version of events. Witnesses were also encouraged by the investigator and or note taker to reference issues that were outside the scope of the investigation as set out in the initial terms of reference. Based on the submissions before it, the Court finds that the investigation process was fundamentally flawed and not capable of being saved by the disciplinary process which was also flawed. The Decision maker took into account issues outside of the terms of reference and did not inform the Complainant of that. The Court having considered all these issues determines that the process followed to come to the decision to dismiss was fundamentally flawed and on that basis the decision to dismiss was unfair. Remedy Section 7 of the Act states 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, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. The Court having heard the parties on the three forms of redress available under the Act considers that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case. Having assessed all the information before it, including the conduct of the Complainant and the Complainants efforts to mitigate their loss, the Court considers that the Complainant has suffered financial loss as a result of the wrong he has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €9,072.78. Determination The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €9,072.78. The decision of the Adjudication Officer is varied accordingly. The Court so determines.
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