SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
ESKER PROPERTY HOLDINGS LIMITED
(REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED)
- AND -
(REPRESENTED RORY KENNEDY B.L. INSTRUCTED BY POWDERLY SOLICITORS)
1.Appeal of an Adjudication Officer Decision No(S) ADJ-00021679 CA- 00028413
The Complainant was employed with the Respondent as a Healthcare Assistant from the 3rd July 2017 until she was dismissed from that employment for gross misconduct on the 9thNovember 2018. The complaint was lodged with the WRC on the 14thMay 2019. Dismissal is not in dispute, therefore, it is for the Respondent to show that the dismissal was fair. The Court held a case management hearing on the 20thMay 2021 and identified for the parties’ additional documents that were required. The hearing of the preliminary and substantive issues was held over two days 25thJanuary 2022 and 6thApril 2022. The hearings took place in a remote Courtroom.
The Respondent raised as a preliminary issue the fact that the Complainant was dismissed by letter dated 9thNovember 2018 for gross misconduct and therefore was not entitled to a notice period. The Complainant lodged her complaint with the WRC on the 14thMay 2019 which meant it was five days outside the six-month period provided for in the Act. The Complainant submitted that she was entitled to a weeks’ notice period and therefore the complaint was lodged within the specified time-limits.
The Court having heard both parties on this issue, concluded that it needed to hear the case in full before it could decide on whether the complaint was submitted within time and advised the parties that it intended to proceed on that basis.
It was agreed with the parties that their submissions would be taken as read, the parties would give an overview of their submission, the Court would then proceed to hear witness evidence and then the parties would have an opportunity to make legal submissions and closing arguments.
Summary of Respondent’s submission and evidence.
Ms Egan representative for the Respondent submitted that in and around the 19thSeptember 2018 the Complainant made a complaint of bullying against her line manager. An investigation into her complaint was launched in line with the Respondent’s policies. In the course of that investigation on the 12thOctober 2018 a fellow employee with whom the Complainant was friends on snapchat provided a statement to the Director of Operations Ms Maguire, stating that the Complainant had posted a video recording of an event on snapchat which occurred during working hours. Some residents were captured in the video, and the video had an inappropriate caption. The Complainant was contacted by phone on the 12thOctober 2018 by Ms Maguire and told that an allegation had been made, the nature of same and that she was being suspended with full pay. This was followed up by a letter of the same date setting out the details of the allegations and that she was suspended on full pay pending the completion of the investigation. The letter went on to say that depending on the outcome of the investigation she could be required to attend a disciplinary hearing. The Complainant was invited by letter of 15thOctober 2018 to attend an investigation meeting on Wednesday 17thOctober 2018. The letter set out the nature of the allegations and that the Complainant could be accompanied by a colleague or trade union representative. The investigation meeting was conducted by Ms Ksenija Kiraly.
During the same period of time an investigation was also taking place into the Complainants allegation of bullying against her line manager. Ms Samantha Henry the Respondent’s Registered Provider’s Representative, in her evidence to the Court confirmed that she carried out the investigation into the bullying complaint but had no role in the disciplinary process. She accepted that the bullying investigation took about eight months to complete. Ms Henry stated that she had to interview a number of people and had to go through a lot of evidence.
In response to a question from Mr Kennedy BL in cross examination she accepted that she did not tell the Complainant that she was not going to interview the witness identified by the Complainant as she no longer worked for the Respondent. She also accepted that she did not tell the Complainant that she was expanding the original terms of reference to include a complaint from the line manager about the Complainant.
The next witness for the Respondent was Ms Maguire who was Director of Operations. Ms Maguire in her evidence to the Court confirmed that a member of staff approached her and told her about the snapchat and showed it to her on her phone. The member of staff in question stated that she knew about it for about six weeks, but her phone was broken so she couldn’t show it until her phone was fixed. Ms Maguire stated that she notified the clinical nurse in charge and spoke to the Respondent’s HR company who advised her to ring the Complainant and suspend her with pay pending an investigation, which she did. Ms Maguire stated that she was aware of another incident where there had been a breach of the social media policy and the staff involved in that incident had been given final written warnings, she said that incident involved two staff messing about in a resident’s bedroom with a musical instrument, but no resident was captured in the video.
In response to a question from Mr Kennedy BL, Ms Maguire confirmed that the people involved in that incident had not been suspended. Ms Maguire also stated that the HR Company had advised her that it was a lesser sanction if the resident was not in the picture. She accepted that in terms of the policies that operated at the time of this incident that was not set out in the Respondent’s policies.
The next witness for the Respondent was Ms Sharon Daynes Financial Controller. Ms Daynes stated that she was the Disciplinary Officer and the decision maker. In response to questions from Ms Egan, Ms Daynes stated that she was assisted in the process by a Ms Ciara Mc Cormack from the Respondent’s external HR Company who was there in an administrative capacity. The disciplinary hearing took place on the 3rdNovember 2018. Ms Dayne stated that she went through the investigation documents, and that she made the ultimate decision to dismiss. It was her evidence to the Court that she did not consider any alternative to dismissal.
In response to questions under cross examination from Mr Kennedy BL, Ms Daynes stated that she signed off on the letter of the 13th October 2018 inviting the Complainant to the disciplinary hearing but that it was drafted by the HR company. Ms Daynes accepted that the letter only stated that if the allegation was upheld that it may be considered gross misconduct and did not mention any other options that might be considered, and that a copy of the disciplinary process was not attached to the letter. It was her evidence that the Complainant would have received a copy of the disciplinary process when she started work with the Respondent. Ms Daynes stated that she had not received any training in holding a disciplinary hearing and that she relied on Ms Mc Cormack advice. She also stated that she did not ask any questions and that Ms Mc Cormack had drawn up and asked all the questions. Ms Daynes stated she had asked Ms Mc Cormack if dismissal was allowed for an incident of this nature, and she had confirmed it was. Ms Daynes stated that she did not believe the Complainant was taking the issue seriously.
In response to a question from Mr Kennedy BL, Ms Daynes accepted that she had not put that to the Complainant and could offer no reason as to why she had not, other than that Ms Mc Cormack had asked all the questions. Ms Daynes stated that she was leaning towards a finding of gross misconduct before she went into the disciplinary hearing and that she was not sure if there was anything the Complainant could have said or done at the disciplinary hearing to move her off a finding of gross misconduct. Ms Dayne stated that once she decided that it was gross misconduct, she did not consider any sanction other than dismissal. Ms Daynes also confirmed that she did not draft the letter of dismissal dated 9thNovember 2018 although the letter did issue in her name.
The final witness for the Respondent Ms Forrest James is a Director of the nursing home. Ms Forrest James in response to questions from Ms Egan stated that she had never done a disciplinary appeal hearing before and that she took her lead from Mr Barry Mc Crory from the HR company. Mr Mc Crory briefed her on what the Complainant was appealing. Ms Forrest James confirmed that she had never met the Complainant before the appeal hearing and did not know anything about her or her record up to that point. Ms Forrest James stated that initially she did not ask any questions as she wanted to get a feel for the meeting. She felt that the Complainant was not represented and that she was very young, so she stepped into give her an opening to make her case. It was her evidence that she was looking for remorse and assurance that the Complainant would not do it again. It was her evidence that the Complainant never once said that she would not do it again. Ms Forrest James stated that she believed that the Complainant did not comprehend enough not to do it again and that she did not seem to understand what was happening. Ms Forrest James stated that she got frustrated because the Complainant was so na�ve, and she felt the Complainant did not understand what she had done was wrong. Ms Forrest James confirmed to the Court that she did not consider any option other than dismissal.
In response to questions from Mr Kennedy BL, Ms Forrest James confirmed that she did not think training would make any difference in this case. She stated that she had no knowledge of previous incidents by other members of staff or how they were dealt with. Ms Forrest James stated that she was made aware of Ms Daynes decision but did not know the details of same or the basis upon which Ms Daynes had come to that decision to dismiss, as she was not given the disciplinary findings. Ms Forrest James stated that she was verbally briefed by Mr Mc Crory but was not given any documentation arising from the earlier stages in the process. Ms Forrest James confirmed that she had not familiarised herself with the disciplinary process but was made aware by Mr Mc Crory that dismissal was the appropriate sanction for gross misconduct and that a lesser sanction was not appropriate. Ms Forrest James stated that she was told that this was in the policy, but she did not check the policy to see if that was correct. Ms Forrest James confirmed that the letter containing her decision not to allow the appeal was written by the HR company and that they had put the reasons for not upholding the appeal in the letter, she just signed it.
Ms Egan submitted that the Complainant accepted that she had received the employee handbook that contained all the policies. The fact that she chose not to read the policies was not something she could now seek to rely on. The Respondent followed their own procedures and the process was facilitated by their external HR company. Even if as suggested by the Complainant there were some flaws in the process this does not necessarily render the process unfair.
It was not disputed that the incident as alleged had occurred, the Complainant admitted it when it was raised with her. The decision to dismiss was within the band of reasonable responses. Ms Egan opened to the Court a number of cases she was relying on to support her submission that the decision to dismiss fell within the ‘band of reasonableness test’ referenced in case law.
Ms Egan submitted that should the Court find that the dismissal was unfair then compensation was the appropriate form of redress. The bond of trust between the Respondent and the Complainant has been irreparably damaged so neither reinstatement nor reengagement would be appropriate in this case. Ms Egan submitted that in considering compensation the Court is obliged to consider the Complainants contribution to her dismissal which she submitted was considerable and the fact that she has only made minimal efforts to mitigate her loss.
Summary of Complainant’s submission and evidence
Mr Kennedy BL submitted that the Complainant had made a complaint about a line manager and suddenly found herself facing disciplinary charges and ultimately dismissal. While the Respondent took eight months to process the Complainants bullying complaint, the person against whom she made the complaint against was not suspended. Contrast that to the way the Complainant was treated a colleague raised an issue and the Complainant was suspended on the same day and dismissed within four weeks. The Complainant does not dispute that she put the video up on her snapchat, but she did not know and could not know that one of her colleagues captured and retained the video. Normally snapchat can only be viewed by people in your group and it disappears after 24 hours. The Complainant knows she was wrong to make the video and she apologised for same. The employee handbook that was opened to the Court is a newer version and not the handbook that was operational at the time the Complainant was dismissed. This is important as the newer version carries a reference to social media usage that was not in the original handbook that the Complainant had. The Complainant believed based on what had happened to other staff that she would be given a written warning.
The Complainant in her evidence to the Court stated that the video had actually been taken some months earlier and not just six weeks ago as alleged and that she had not taken any videos since then. She had put it on her snapchat where only her friends could see it. She didn’t intend to include the residents in the video as she was not videoing them. She accepted that it was wrong to video and stated that when it was raised with her, she had apologised. The Complainant confirmed that she had received the letter inviting her to a disciplinary hearing and it said she could bring a member of staff. However, she did not bring anyone as she did not trust her colleagues not to discuss it with other staff members. The first time she became aware that dismissal was a possibility was at the dismissal hearing. The Complainant stated that she apologised over and over again and said that it would not happen again, so she was surprised when she was told she was being dismissed. It was her evidence that other people had posted things on social media and not been dismissed. The Complainant stated that she started looking for work but was unsuccessful in the care field because of the dismissal. She did a course then got a job as a nail technician.
In response to questions from Ms Egan under cross examination the Complainant agreed that she had received the employee handbook and that within the employee handbook there was a social media policy. The Complainant stated that she felt it should be a lesser sanction than dismissal as others had done wrong and received a lesser sanction. She stated that she believed she was being targeted because she had made a bullying complaint against her manager. The Complainant gave three examples where other staff had acted inappropriately and had only received a written warning.
Mr Kennedy BL submitted that there were serious flaws in the process. The Respondent submitted that the HR company was there to provide administrative support but both the notes of the disciplinary hearing and the appeal hearing show that the representatives from the HR company lead the questioning. Both of the Respondent’s witnesses involved in the process confirmed that the HR company had drafted up the questions to be asked and all the correspondence that issued, and that they had just signed their names to these documents. It was equally concerning that the evidence of the decision maker was that nothing that the Complainant could have said during the disciplinary hearing would have changed her view that the incident was gross misconduct which suggests that the outcome was pre-determined. Both witnesses indicated that they relied on the HR company to interpret the Respondent’s policies and did not check the policies themselves. They stated that they were advised by the HR Company, that dismissal was the only appropriate sanction for gross misconduct, and that incidents of this nature constituted gross misconduct. This not factually correct. The Respondent’s policy does not say this, so they were incorrectly advised. The policy in force at the time did not include breach of social media policy as possible gross misconduct that was only included in the policy after the Complainant was dismissed. The Complainant’s evidence is that she did apologise on a number of occasions, yet Ms Forrest James stated that one of the reasons she did not uphold the appeal was because the Complainant did not apologise. Mr Kennedy BL, submitted that it was the Complainant’s uncontested evidence that other staff who had behaved inappropriately had received lesser sanctions. It was his submission that in the circumstances of this case the decision to dismiss did not fall within ‘the band or reasonableness’. The appropriate redress in this case is re-instatement or re-engagement.
6.— (1) 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.
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
Issue for the Court
Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair.
In this case the conduct of the Complainant is not disputed and therefore, the question to be considered by the Court is whether the Respondent acted in a reasonable manner in coming to the decision to dismiss.
It is well established that in exercising its jurisdiction to determine appeals under the Unfair Dismissals Act 1977, it is not the role of the Court to substitute its decision for that of the Respondent. The Court notes the following:
The Decision maker’s evidence that there was nothing the Complainant could have said at the disciplinary interview that would have convinced her that the incident was not gross misconduct.
The over reliance by both the decision maker and the person hearing the appeal on information supplied to them by the HR advisor and the failure to investigate or engage with the issues themselves.
The evidence given by both the decision maker and the person hearing the appeal that the HR company drew up all the correspondence including the outcome of the disciplinary and appeal processes and that they just signed the letters as presented to them.
The incorrect belief by both the decision maker and the person hearing the appeal that under the Respondent’s policy an incident of this nature could only be gross misconduct.
The incorrect belief by both decision maker and the person hearing the appeal that the only sanction available for gross misconduct was dismissal.
The fact that neither the decision maker or the person hearing the appeal considered any sanction other than dismissal.
The Court finds that these facts in and off themselves indicate a lack of independence in the process in a situation where the external HR advisors are determining how the allegation is framed, what questions should be asked at the disciplinary hearing and deciding the basis on which both the decision maker and the person hearing the appeal came to the conclusions that they came to. The Court’s attention was drawn to a number of cases by the parties that were opened to the Court relevant to the issue under consideration. The Court in its deliberations noted that the test for reasonableness was set out inBank of Ireland v Reilly IEHC 241, where Noonan J. noted that s6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However, he went on to say at paragraph 38 of the judgment:
“That is not however to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”
and at paragraph 56 Noonan J. stated:
“In assessing the reasonableness of the employer’s conduct in relation to dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response”.
Furthermore, the Court determines that in the circumstances of this case the decision to dismiss could not be said to fall within the band of reasonableness or to be proportionate, particularly in circumstances where what was at stake was not just the loss of the Complainant’s job but also the loss of her career.
The Court determines that the dismissal was unfair. Having come to that decision the Court considered the time limits issue raised by the Respondent and finds that the Complainant was entitled to a weeks’ notice and therefore her complaint was lodged within the statutory period.
The decision of the Adjudication Officer is upheld. The appeal fails.
The Court so determines.
Enquiries concerning this Determination should be addressed to Sinead O'Connor, Court Secretary.