Complainant

Respondent

Parties

Joanna  O'Neill

Eircom Limited Eir And Open Eir

Representatives

Fionnuala Ní Bhrógáin Communications Workers' Union

 Mary Fay BL

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-00035431-001

25/03/2020

The Complainant commenced employment with the Respondent as a customer services representative on 8 February 1999 and was paid €625.79 per week. She was dismissed on the grounds of gross misconduct on 13 December 2019 as a result of threatening behaviour made towards her line manager, Mr Y, in a meeting on 15 May 2019.

The Complainant stated that she suffered from a number of medical issues and had to attend medical appointments from time to time. She highlighted that in the week beginning 6 May 2019, she had been informed of an appointment for a retina screening and as Mr Y was not in the office asked Ms X what she should do with the letter. Ms X informed her that she would take the letter and she then passed it to the Operator Service Team Member before the letter was ultimately placed on Mr Y’s desk.

Mr Y returned to the office on 15 May 2019 and informed the Complainant that he was unhappy about the short notice he had received for the appointment. The Complainant informed him that the letter had been sitting on his desk for over a week. Mr Y subsequently asked the Complainant to attend a meeting with him and also invited Ms X as a witness. He informed the Complainant at this meeting of his displeasure with the number of medical appointments she had and stated that he couldn’t keep working around these. He also informed the Complainant that she was unreliable and couldn’t tell the truth. The Complainant was upset as a result of these comments and informed Mr Y that he reminded her of her brother and that she would love to shake him (her brother). The meeting then ended and on 20 May 2019 Mr Y submitted a formal complaint alleging that the Complainant had been very aggressive, insulting and confrontational during the meeting of 15 May 2019, that she stood up and bent over the table and claimed that she would love to shake him.

The Complainant categorically denied these allegations and highlighted a number of emails from April 2019 which she stated demonstrated a breakdown in the relationship between her and Mr Y. She also stated that there were difficulties in her relationship with Ms X and alleged that although she had asked for mediation to resolve the matter, this had not been provided. In making his decision to terminate her employment, the Complainant stated that Mr O’Donovan did not take the difficulties in these relationships into account. It was further asserted that there were inconsistencies in the witness statements which were not considered by Mr O’Donovan in making the decision to terminate the Complainant’s employment. It was also alleged that the Complainant would have moved around in her chair during the course of the 15 May meeting due to nerve damage in her spine and that any observed motion of wringing or twisting her hands was attributable to pins and needles.       

The Complainant was employed by the Respondent as a Customer Service Representative in the Athlone call centre. On 20 May 2019, the Respondent received a complaint from Mr Y, containing allegations regarding the Complainant’s behaviour towards him. The complaint concerned a meeting between himself and the Complainant on 15 May 2020 whereby he had alleged that the Complainant made threats against him. This meeting was also attended by Ms X who was present as a witness.

Following receipt of the complaint and given the nature of the allegations, the Complainant

was requested to attend a meeting with the Director of Customer Operations Support on 23 May 2019. The Complainant was informed of the complaint made against her by Mr Y, that it would be investigated pursuant to the Disciplinary Procedure and that she would be suspended with pay pending the investigation outcome. The Complainant was also informed that the suspension was necessary in order to prevent a potential repetition of the alleged behaviour and to protect individuals who may be at risk from such repetition. The Complainant was given a copy of the Respondent’s Disciplinary Procedure at this point.

Mr. John Connors, Fixed Technical Services Manager was appointed to conduct the Disciplinary Investigation. Mr Connors met with Mr Y and Ms X separately on 10 June 2019 in relation to their recollection of the meeting of 15 May. Mr. Connors also met with Ms X on a second occasion on 12 July 2019. The reason for the second meeting with Ms X was due to an inconsistency between the email sent by Ms X to Mr Y the morning after the 15 May meeting and her initial investigation meeting on 10 June. Mr Connors decided to meet Ms X again in order to obtain clarification in relation to the inconsistency.

Thereafter, Mr. Connors arranged to meet the Complainant on 21 June 2019. The Complainant

was informed that the investigation was held pursuant to the Respondent’s Disciplinary Procedure and that it was to investigate an allegation of gross misconduct. The Complainant was provided

with the formal complaint from Mr Y as well as witness statements of Ms X in advance of her meeting and she attended with her union representative. The Complainant also met with Mr. Connors on 30 August 2019.

Mr Connors completed the investigation and a copy of the investigation report and meeting

notes were provided to the Complainant by letter on 9 October 2019. Mr. Connors found that on the balance of probability, the Complainant acted aggressively towards Mr Y during the meeting of 15 May 2019 and that there was evidence to say that she behaved in an overly aggressive and confrontational way.

The Complainant was informed that the Investigation report had been reviewed by the Head of Employee Relations and that he decided that the case should be reviewed in a disciplinary hearing pursuant to the Respondent’s Disciplinary Policy. The Complainant was also informed that no decision had been made in relation to her employment however it was a very serious matter of potential gross misconduct for which the sanctions could include dismissal from employment.

The Complainant was invited to attend a disciplinary hearing. On 1 November 2019, the

Complainant attended a disciplinary hearing with Mr. John O’Donovan, the Head of Site who

was the decision maker in this regard. The Complainant attended with her union representative. In making his decision, Mr. O’Donovan noted that the Complainant had had a strong relationship with Ms X up to the meeting on 15 May 2019. Mr. O’Donovan also took on board the background provided by the Complainant in relation to interpersonal relationships but found that this was not relevant to the meeting on 15 May. In addition, Mr. O’Donovan considered the fact that Ms. X had initially given a contradictory statement to the investigator but noted that he relied on the email sent by Ms Doyle immediately following the meeting as the “best evidence” of what had transpired. Accordingly, Mr. O’Donovan found that the meeting did happen as per the investigation report findings and that the Complainant behaved aggressively in a manner that made Mr Y feel threatened. Mr. O’Donovan considered that any aggressive or threatening behaviour was unacceptable conduct in a workplace and that it amounted to gross misconduct for which dismissal was an appropriate sanction. Mr. O’Donovan stated in his letter that he did consider alternatives to dismissal however in light of the lack of acceptance from the Complainant of any wrongdoing, he believed that there was a possibility of further incidents and the Company’s duty to provide a safe place of work for its employees. Mr. O’Donovan considered that the Complainant’s behaviour was

sufficiently serious to break the relationship of trust and confidence. Accordingly, the decision was made by Mr. O’Donovan to dismiss the Complainant for gross misconduct. Mr. O’Donovan took into account the lack of prior disciplinary record as mitigation and downgraded the sanction from summary dismissal to dismissal with notice.

The Complainant was advised of her right to appeal to the CEO and on 18 December 2019, the Complainant sent in her grounds of appeal. Due to the Christmas holidays, an appeal meeting was scheduled for 21 January 2020. The Complainant attended with her union representative. Following the meeting, an appeal outcome was delivered to the Complainant on 4 February 2020. The Appeal upheld the original decision to dismiss for gross misconduct.

THE LAW:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

4)     Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

Section 7 of the Act, in relevant part, makes provision as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

ANALYSIS

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is helpfully set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against. 

In the instant case, I note that the Complainant was dismissed on the grounds of gross misconduct because she was found to have acted in such an aggressive way so as to make Mr Y feel threatened in a meeting on 15 May 2019.

The two major planks of the Complainant’s case are that the witness statements of Ms X, who was the sole independent party in attendance at the aforementioned meeting, were contradictory and that her relationship with both Mr Y and Ms X was very difficult and strained at the time of the meeting.

Having regard to Ms X’s witness statements, it is clear from a review of the minutes of the meetings of 10 June 2019 and 12 July 2019 that there were omissions in Ms X’s original version of events because in the second meeting she stated that the Complainant raised herself off the chair, reached across the table, did a choking motion and informed her Mr Y that he reminded her of her brother, which she had not stated at the 10 June meeting. Ms X also stated in her meeting on 12 July 2019 that the Complainant stood up a few times during the course of the 15 May meeting and stated that she (Ms X) told her (the Complainant) to sit down more than once, which appeared to contradict what she (Ms X) had said during the 10 June 2019 meeting.

I note in the first instance that Mr O’Donovan recognised the inconsistencies in these statements and find it reasonable that he relied on Ms X’s statement of 12 July 2019 and the email that she had sent the Complainant’s Mr Y the morning after the 15 May meeting. Specifically, this email stated that the Complainant’s aggression and tone at the meeting was totally unacceptable and highlighted that she (Ms X) had never seen anyone speak with such anger and on the minutes of the second meeting she had with the investigator. Moreover, it was reasonable of Mr O’Donovan to find, as he outlined in the termination letter, that Ms X gave an incomplete account of the 15 May meeting in her statement on 10 June because she wanted to preserve the relationship she had with the Complainant.

While the Complainant also highlighted the difficult relationship she had with both Ms X and Mr Y around the time of the fateful meeting, I do not consider it unreasonable that Mr O’Donovan failed to consider the possibility of any collusion between them.  I also noted that Ms X’s version of events, as relayed on 12 July as well as her email of 16 May, largely corroborated the account of Mr Y and believe it was reasonable of Mr O’Donovan to rely on these statements rather than those of the Complainant.

I also noted that Mr O’Donovan recognised the Complainant’s lack of remorse for her behaviour in the meeting of 15 May as a factor in his decision and believe that it was entirely reasonable that he did so. Specifically, I cannot understand why the Complainant did not apologise to Mr Y for comparing him to her brother as well as for changing her tone in the meeting and do not know how she could have expected resume a normal working relationship with Mr Y without having made such an apology at any time after the 15 May meeting.

Having therefore found that Mr O’Donovan’s decision was reasonable in the circumstances and that the dismissal was substantively fair, I must now examine if it was procedurally fair.

I note firstly that the Complainant was afforded a full investigation of the allegations made against her, that she was given the opportunity to respond to the findings of the investigation during the disciplinary hearing, was given her full rights of appeal in respect of the dismissal and was afforded the opportunity to be accompanied by her union representative at every stage throughout the process. Notwithstanding these rights having been afforded to her however, I was troubled by the involvement of the inhouse solicitor Ms Jacqueline Ho in the process given that Mr O’Donovan stated in the disciplinary outcome letter that he had made the decision. Specifically, when I questioned Mr O’Donovan about the delay between the disciplinary hearing of 1 November 2019 and the outcome being issued to the Complainant on 13 December 2019, he stated that he “had to consult with HR”, namely Ms Ho, before he could issue what was meant to be his decision. I was also concerned, when questioned by me, that Ms Ho acknowledged making changes to the termination letter even though these amendments were only “stylistic”.    

In making a decision on whether or not the questionable involvement of Ms Ho rendered the dismissal procedurally unfair, I note that in the case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J held that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result.” Having regard both to that decision and the compelling evidence of Mr O’Donovan that the decision to dismiss the Complainant was truly his own and that he arrived at that prior to consulting with Ms Ho, I am satisfied that the procedural flaw which I have identified was insufficient to render the dismissal procedurally unfair.

Given that the dismissal was both substantively and procedurally fair, I find that the Complainant was not unfairly dismissed.

I find that the Complainant was not unfairly dismissed for the reasons set out above.