ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00040798

Parties:

Complaint:

Date of Adjudication Hearing:  28/11/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  and/or Section 8 of the UnfairDismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant contends that he was unfairly dismissed for non-cooperation on foot of an external report and alleged inappropriate behaviour.

Summary of Respondent’s Case:

The Complainant’s employment terminated on 15 March 2022 in circumstances where:

1. Serious concerns had arisen in relation to the Complainant’s behaviour towards colleagues that were highlighted in a third-party audit and documented in a report prepared by independent consultants (“The B report”);
2. The Complainant repeatedly refused to engage with senior management in a meaningful way in relation to these concerns even going so far as to refuse to attend certain meetings (it is noted that the Complainant’s own submission acknowledges his unwillingness to engage);
3. The Company could not accept the Complainant’s repeated refusal to engage and to meet with senior managers and could not have trust and confidence in him going forward.

The facts

During 2021, four different employees made complaints against the Complainant under the Respondent’s policy and procedure on Dignity at Work. All alleged that he engaged in intimidatory behaviour. Two of these four complaints were made in December 2021. A fifth employee refused to return to work after a period of sick leave because they were unwilling to work under the management of the Complainant.

Two-thirds of all complaints received by the Respondent under the Dignity at Work policy and procedure in 2021 related to the Complainant. The other two complaints related to another employee.

On or about 27 September 2021, anonymous correspondence was received by the Respondent’s parent company regarding the Complainant in which it was alleged that he was “out of control” and engaged in “bullying behaviour” towards colleagues.

Arising from confidential audit interviews in which employees complained of bullying, public shaming and verbal abuse, the Respondent commissioned an independent consultant to conduct a review involving confidential interviews with a broad cross-section of the workforce and report on whether or not negative behaviours were experienced in the company. A range of other measures were also taken in order to address concerns regarding bullying on-site.

The B report resulted from confidential interviews conducted with 50 employees in December 2021 and the report was furnished to the Respondent on 6 January 2022. It found that there were significant concerns in relation to two particular employees, one of whom was the Complainant. In particular, it was reported that:

“The vast majority acknowledged concerns about morale on the floor and described difficulties encountered whether personally experienced, witnessed or heard from others. In other words, the alleged incidents have grown to a point where they have entered the folklore or experience of almost the entire workforce. Where interviewees indicated they had been told about incidents or issues, rather than having experienced or witnessed them, they all stated they believed the source was reliable.

Manager 1 – Neil Lavery

The greater fear or concern was expressed in relation to Manager. 1. There was an inordinate caution or fear around this individual who was considered volatile in terms of sudden anger and vociferous derogatory comments loud enough for other bystanders to hear; the latter occasionally perhaps intended to be funny but considered to be at the recipient’s expense. The general view is that this is a common occurrence. Overall, taking account of the various points made by interviewees as to the extent of their experience it appears that incidents occur possibly on a weekly basis. Team leaders, some of whom indicated they found the behaviour directed at others made them uncomfortable, described this as

• Wishing Manager 1 would engage his brain before he spoke
• Manager 1 matching the behaviour before him rather than responding professionally, and
• He should pick his battles

One significant difficulty arising from this is how the perception of this behaviour is now embedded in the floor workforce who view the behaviour as arbitrary, selective, unpredictable and unfair. There is a widespread view that these behaviours are also particularly deployed towards those who are vulnerable, that is, those who are less likely to attempt to defend themselves, one such example is described in the following paragraph. If this allegation was to be upheld, it could be considered an abuse of power. The application of such behaviours towards seasonal workers generally was noted even though it was also noted that such workers may not have the same level of training, may be slower, and may be seen by managers as not worth the effort of training.

Some examples of incidents were contained in the report:

Where a product was considered not to be of the appropriate standard by two different employees, the manager grabbed it, shook it and asked loudly what was wrong with it in a manner that was found to suggest the employees did not know their job and was therefore felt to be undermining.

• Leaving an employee crying for not cleaning a chair
• Standing watching workers until it goes beyond what is appropriate, until it is “weird’.
• Multiple people spoke of being asked questions that the manager already knew the answer to which was found to be a device to lead to self-incrimination.
• Inappropriate interactions and communications including shouting at employees while close to them and shouting “smart” comments across at them
• Response to worker in front of others “I don’t want to hear what you think” while in the recipient’s face
• Out of the blue and in front of everyone, shouting without provocation
• Picking on one person for using the wrong pallet and not similarly criticising others for the same issue..

The overall impact of these alleged incidents and ongoing, reportedly routine, behaviours appears to have been to create or enhance considerable distrust of the manager and caution as to potential unpredictable and volatile reactions to minor situations that could and should be addressed without getting to disciplinary processes. I am satisfied that the incidents described, if complained about, would be sufficient to establish there was a case to answer requiring an investigation. In the circumstances of this process, no formal complaint is to hand and none of the interviewees were prepared to make their complaint formal.”

On 20 January 2022, Ms K HR Manager, and Mr W, Operations Director, met with the Complainant informally, told him about the content of the report and furnished him with a copy of the section of the report that related to him. Ms K wrote to the Complainant on that same day. The Complainant was offered paid time off that Thursday and the following Friday to consider the content of the report prior to a meeting arranged for the following Monday, 24 January 2022. These meetings were informal and were not disciplinary meetings.

On 24 January 2022, the Complainant informed Ms K and Mr W that he intended to respond to the report in writing. He refused to discuss the report with them. The meeting lasted for approximately five minutes. Emails were exchanged between Ms K and the Complainant later that day.

The Complainant prepared a written response to the B Report, dated 26 January 2022 and sent same by email to Ms K on 31 January 2022. The response in question indicated no acknowledgement or recognition on the part of the Complainant that his conduct or management style might in any way be responsible or partly responsible for the concerns articulated in the report. Rather, it attempted to criticise management and staff at all levels and indicated that, in effect, everyone was to blame bar him for problems having arisen.

Ms K wrote to the Complainant again on 2 February 2022 asking him to meet with her and Mr W, Operations Director, on 7 February 2022 to discuss the issues arising. The aim of the company was to engage in a collaborative approach to identifying and resolving concerns. The Complainant refused to attend the meeting. Rather, he informed Ms K on 8 February 2022 that he would not be making any further comment and that he would not attend any further meetings. He confirmed his position by email later that morning and stated that he would not sit in a room with Mr W.

Ms K wrote to the Complainant on 11 February 2022 expressing her concern regarding his unwillingness to engage. She informed him that he was being put on garden leave for one week and informed him that he was to meet her and Mr. W on Monday, 21 February 2022.

The Complainant then sought a meeting with the Managing Director. He was facilitated in that regard on 14 February 2022. The Complainant chose to avail of that meeting to complain about Mr. W.

Ms K met with the Complainant on 21 February 2022. Mr. W did not attend in circumstances where it now appeared that the Complainant wanted to complain about that gentleman. Once again, the Complainant refused to engage with Ms K in relation to the subject matter of the B Report.

Ms K wrote to the Complainant again on 22 February 2022. Her letter recounted the events of the previous day.  Ms Kenneally responded to a letter from the Complainant by way of a letter dated 25 February 2022. Her letter also recounted the sequence of events leading up to that date. It also articulated the view that trust between the Complainant and the company was broken.

On 4 March 2022, Ms K wrote to the Complainant inviting him to attend at a disciplinary hearing to take place on 11 March 2022. The letter explained that the company had serious concerns regarding: • The Complainant’s apparently inappropriate behaviour towards colleagues;

• His apparent lack of willingness to acknowledge and address the concerns and to meaningfully engage with the company;
• His repeated refusal to obey lawful and reasonable instructions to meet with senior managers and discuss the content of the B Report;
• The company’s inability to address and resolve concerns in light of his refusal to meet and discuss same;
• The ability of the company to have trust and confidence in him going forward.

The disciplinary hearing took place on 14 March 2022 .  The meeting was chaired by Mr D, Head of Supply Chain, who had no previous involvement in relation to the matter and who was solely responsible for deciding on whether or not disciplinary action was to be taken and the form of any such action. The Complainant elected to attend at the disciplinary hearing without any representative. Once again, he insisted that he would not engage in relation to the B report other than in writing.

Mr. D concluded that disciplinary action was warranted. Having considered the form that such action might take, he concluded that the Complainant should be dismissed for the reasons set out in his letter of 15 March 2022. The reasons in question were:

• The Complainant’s inappropriate behaviour towards colleagues;
• His lack of willingness to acknowledge and properly address the concerns and to meaningfully engage with the company;
• His repeated refusal to obey lawful and reasonable instructions to meet with senior managers and discuss the content of the report;
• The company’s inability to address and resolve the concerns in that context; and
• The company’s inability to have trust and confidence in him going forward.

The Complainant was offered the opportunity to appeal Mr. D’s decision but did not do so.

Case law was cited in respect of:

‘Refusal to Obey Lawful and Reasonable Instructions, insubordination and repudiation’’, (R v Darling Island Stevedoring & Lighterage Co Ltd, (1938) 60 CLR 601, 621-622), Brewster v Burke, (1985).

 ‘Reasonable employer’, (O’Grady v Heraeus Metal Processing Limited, Case ADJ-00029216)

‘Compensation, Loss and Mitigation’. Sheehan v Continental Administration Co Ltd (UD858/1999)

Conclusion

The Complainant was dismissed on 15 March 2022 in circumstances where:

1. Serious concerns had arisen in relation to his behaviour towards colleagues that were highlighted in a third-party audit and documented in a report prepared by independent consultants;
2. The Complainant, by his own admission, repeatedly refused to engage with senior management in a meaningful way in relation to these concerns even going so far as to refuse to attend certain meetings;
3. The Company could not accept the Complainant’s repeated refusal to engage and to meet with senior managers and could not have trust and confidence in him going forward.

It is submitted that it was within the band of reasonable responses for the employer to terminate the employment of the Complainant in circumstances where:

• it had very serious concerns about his treatment of colleagues;
• those concerns had been highlighted by an independent audit and an independent consultant’s report;
• the Complainant had been the subject of a series of complaints and had been provided with coaching;
• the Complainant refused to meet with management to discuss the concerns (thereby refusing to abide by lawful and reasonable instructions) and instead responded by attempting to blame the workforce and senior management; and
• the company could not have trust and confidence in him going forward.

Even if the Adjudication Officer concludes otherwise, it is an inescapable fact that the Complainant significantly contributed to his own dismissal and that fact should be taken into account in determining if any aware of compensation should be made (and the size of such an award if and award is made). If compensation is awarded (and it is respectfully submitted that no such award should be made), it is submitted that the Complainant has failed to mitigate his own loss and that fact should be taken into account.

The HR Manager Ms K gave sworn evidence summarised as follows:

She was HR Manager in the company from June 2016 to July 2022 and has HR experience since 1999. The Complainant was employed first as a Waste Management Analyst, then Manufacturing Facilitator and then as Manufacturing Manager.  There were some complaints made in 2021 by 4 employees which outcomes were inconclusive.  Coaching was introduced involving some managers.  A number of anonymous letters were sent to the Respondent’s Belgium partner and in the context of a Responsible Business Alliance audit, some actions had to be taken to address concerns.  The Respondent then engaged an external consultant which resulted in the B report.  The report detailed the complaints about the Complainant’s behaviour but concluded that none of the employees would come forward and be identified.  The Management decided something had to be done and wanted to address the issue informally with the Complainant.  Emails to and from the Complainant failed to make progress.  The Complainant questioned why the MD had received sections of the report, why the Complainant had not received the full report and he alleged gross insubordination in the Assembly Department and made allegations about staff and union representatives.  The company wanted to engage with him but he refused, saying he had nothing further to add and he had no comment and he seemed to firmly believe that Mr W was mentioned in the report and this was concealed.  The HR Manager stated that he was not named in the report.    On 11 February 2022 she wrote to the Complainant putting him on garden leave.  This was not a suspension, it was paid leave for one week.  On 22 February 2022 a meeting was held with the Complainant who would not engage except to complain about the withdrawal of his access to I.T.  He followed her down to her office and threw the letter at her stating he wanted to see the M.D.  On 7th March 2022 the Complainant was invited to a disciplinary hearing to consider the issues 1-5 as outlined in the letter.     The hearing was chaired by Mr D, Head of Supply Chain and this concluded Ms K’s involvement.

Mr D Head of Supply Chain gave sworn evidence summarised as follows:

He confirmed he had limited involvement in the case, except to chair the disciplinary meeting.  He stated that the meeting with the Complainant was “very deflationary”. He found the Complainant would not engage and he had no intention of moving forward.  He effectively engaged in ‘stonewalling’.  He then had to decide whether the company could have trust and confidence in him going forward. He considered three options: 1) ignore the allegations, 2) place the Complainant in a different role, 3) terminate his employment.  He weighed up the situation overnight and decided that there was no alternative to dismissal.  There was a duty of care to other employees. In cross examination by the Complainant’s barrister, it was put to Mr D that the decision to dismiss the Complainant was taken before the disciplinary hearing, that the letter from the company to him dated 25th February 2022 stated that it was the company’s view that “taken as a whole, the trust that is necessary for you to carry out your role as Manufacturing Manager and as a member of the management team is broken”.  Mr D denied that any decision was taken to dismiss the Complainant before 14th March 2022.  

Summary of Complainant’s Case:

The Respondent contend that following a “major customer audit” they became aware of allegations of inappropriate behaviours and management practices within its organisation and retained a Consultancy firm to conduct an assessment process to ascertain the veracity and extent of any such behaviours and practices. On 20th January 2022 the Respondent furnished the Claimant with a redacted version of the report and encouraged him to take ‘paid leave’ to review the document for a meeting to discuss his response to the report.

The assessment of approximately 50 anonymous employees was undertaken, the outcome of which is highly critical of inter alia the Claimant (“Manager 1”). In the report dated 6th January 2022  concluded that the Claimant’s behaviour was perceived as having “greatly undermined the working experience of employees and therefore even the reputation of the plant as an employer in the area”

The Claimant took exception to the report and was unwilling to accept the criticisms and allegations of anonymous employees raised within the report. As a result of the Claimant’s unwillingness to engage with the Respondent regarding the findings, his employment was ultimately terminated on 15th March 2022.

Paragraph 25 of the contract of employment provides that in cases of [alleged] misconduct, disciplinary action will normally be progressive in nature with the steps typically being

(a) Counselling session

(b) Verbal Warning

(c) Written Warning

(d) Final Written Warning and

(e) Dismissal.

The Respondent initially requested meeting(s) with the Claimant to “discuss the report, the points mentioned by you and the behavioural issues raised in the report”.  At no point did the Respondent specify whether this was a counselling session under the disciplinary process, whether a disciplinary process had commenced or whether the Claimant’s “behaviour” was being viewed as misconduct warranting disciplinary action. If the Respondent contends that the disciplinary process had not commenced, the Respondent failed to follow its own disciplinary steps and wrongfully proceeded to summary dismissal for alleged gross misconduct.

Should the Adjudicator find that the conduct of the Claimant does not amount to gross misconduct, summary dismissal must be considered unjustified.

The summary dismissal of the Claimant and thereby the sanction imposed was disproportionate to the alleged incidents which occurred. In the oft cited case of Brennan -v- Institute of TechnologyCarlow (UD281/2010) the Employment Appeals Tribunal confirmed that to reach the heights of gross misconduct, it “must be something very serious indeed, perhaps criminal or quasi-criminal in nature”. It is submitted that the conduct of the Complainant falls significantly short gross misconduct and consequently the Respondent has acted unreasonably and disproportionally.

The Respondent failed to consider any lesser disciplinary sanction than summary dismissal and thereby failed to apply the band of reasonable responses test which a reasonable employer should consider.

The Respondent failed to issue a formal or informal warning prior to summary dismissal in breach of the Claimant’s contract of employment.

Consequently, the Respondent failed to adhere to the terms and conditions of their own drafted contract of employment, their own Disciplinary Policy and Procedure and Code of Conduct on Grievance and Disciplinary Procedures S.I. No. 146 of 2000.

In the circumstances, the Respondent failed to apply fair procedure or natural justice in their summary dismissal of the Claimant.

Disciplinary finding arising out of the contents of an investigation report not intended to be a disciplinary process.

The investigation report clarified the following within the report: “This process was not a disciplinary process nor was it an investigation in the general employment sense. It was an assessment of the current concerns within the workforce to establish, in the first place, whether difficulties exist and to what extent.” Despite such assurances, the Respondent has wrongfully accepted the allegations contained therein to be conclusive evidence of misconduct on the part of the Claimant, in the absence of fair procedure and natural justice. The contents of the report form the main allegation against the Claimant within the disciplinary process, stating: “Your apparent inappropriate behaviour towards colleagues as identified and set out in the report of Consultancy [the B report] of 6 January 2022”           

In the termination notice, Mr. D concluded the reason for dismissal included “Your inappropriate behaviour towards colleagues”.  In reaching this conclusion, Mr. D relied on a report that was not intended for a disciplinary process and concluded that the Claimant acted inappropriately towards unnamed, anonymous colleagues. Further, the Claimant was unfairly presented with the impossible task of being required to answer hearsay allegations made by unknown colleagues without any context or specificity.

Failure to furnish the Claimant with the full contents of the investigation report, background to the commencement of the investigation and context and allegations made against him.

The Claimant at all times was at an evidential and documentary disadvantage in relation to the investigation report and disciplinary process, whereby he was required to “acknowledge or respond to the elements of the report that outline your behaviour”.

The Claimant was not furnished with the following documentation:

1. a) The initiating major customer/client audit which initiated the follow-on investigation. It is unclear whether a complaint(s) was made against the Claimant or whether he was specifically identified within the said audit;
2. b) The Claimant was furnished with a redacted version of the investigation report;
3. c) The Claimant was not furnished with the questionnaire or the template for the interviews at Appendix 2 of the report;
4. d) The Claimant was not furnished with the names of the employees interviewed and listed at Appendix 1;
5. e) The Claimant was not furnished with the names of the employees making allegations against him and all allegations remain anonymous. In the absence of full disclosure, it is difficult to see how the Claimant could “acknowledge” the alleged behaviour, answer the allegations or was afforded fair procedure. In Bond Retail Ltd v Floyd (UDD1861) the Complainant (Ms Floyd) appealed against the decision of an Adjudication Officer in finding her actions to amount to gross misconduct. The Respondent (Bond Retail Ltd) dismissed the complainant following allegations of theft and a review of relevant CCTV footage. The complainant raised a number of issues regarding the fairness of the investigation and disciplinary process including, in particular, that she had never been provided with a copy of the CCTV footage. In allowing the appeal, the Labour Court found that:

• The respondent had not disputed that he had relied on the CCTV footage in terms of deciding to commence an investigation and following the investigation in concluding that the complainant should be disciplined;
• The respondent confirmed that he had neither provided the Complainant with access to the CCTV footage complainant nor advised her that he had possession of same.
• The complainant was entitled to have access to all the material that the Respondent was relying on before being asked to respond to the allegations. In OSC One Complete Solutions Limited -v-Wojciech Hurko (UDD1915) a statement of complaint was not provided to the Complainant prior to or during at the investigation meeting or at the disciplinary meeting. While the Complainant admitted the complaint made, the statement of complaint was referred to within the meetings and the manager told the Court that the statement was not relevant to his decision to dismiss the Complainant, the Labour Court held that the Respondent’s failure to provide the statement to the Complainant in advance was in breach of fair procedures. The Labour Court noted the following principles: “It is a basic tenet of fair procedures in the context of disciplinary proceedings that any and all evidence/documents/statements that may have a bearing on the matter in hand must be shared with the person who is the subject of the proceedings…

…The fair procedures obligations owed to a person cannot be discharged by reference to what the decision ultimately is purported to be based upon. The fact is that in this case the statement in issue could have had a material bearing on the outcome, hence the requirement that it be shared in advance so as to afford an informed response on behalf of the Complainant. Indeed, the Court notes that, albeit briefly, some of the content of the statement was referred to by the disciplining manager in the disciplinary hearing. The fact that the statement apparently did not ultimately feature in the decision-maker’s decision process is, therefore, beside the point.” In the case of David O’Connor v Servier (Ireland) Services Limited [2017] 28 ELR 325 the EAT found that the failure to provide the employee with all documentation in sufficient time was “a denial to the complainant of his right to any meaningful study of the evidence which grounded an accusation against him and was a serious breach of that employee’s fundamental rights”. In this case, the Claimant had not been provided with any of the statements, questionnaires or details of the allegations made by his colleagues interviewed by B. Despite this, the Claimant was examined upon this unknown information at the disciplinary hearing and Mr. D relied upon these allegations in dismissing the Claimant.

Inability to test anonymous allegations and cross-examine witnesses

Mr. D concluded that the Claimant was guilty of gross misconduct as a result of inappropriate behaviour towards colleagues. The Claimant remains a stranger to the identity of these anonymous colleagues, and none were produced to give evidence prior to or at the disciplinary hearing. At no time was the Claimant permitted or provided with an opportunity to confront or question these colleagues, either prior to or during the disciplinary hearing or at all. Consequently, the entire process lacked transparency and an ability for the Claimant to answer the allegations or provide a defence. Pursuant to S.I. 264/2000 Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000, fair procedure requires inter alia:-

• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the allegations or complaints be set out in writing
• That the source of the allegations or complaint be given
• That the employee concerned be allowed to confront or question witnesses None of these rights were afforded to the Claimant. In Roger Martin -v- Coca Cola Hbc Ireland Ltd (ADJ-00022037) the Adjudicator held: “There was a considerable weight given by the complainant to the fact that he was not facilitated with cross examination. A right to fair procedures and natural justice in implied into contracts of employment. These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment. The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process. It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made. While this right may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters. Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer. In Borges v. The Fitness to Practice Committee [2004]1 IR103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures. In that case, Keane CJ stated: “It is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to crossexamine, by counsel, his accuser or accusers. [1971] IR 217.” It follows then that in addition to the right to cross examine his or her accuser there is a further entitlement to be told of this right. If an employee fails to ask for cross examination, they cannot be faulted for failing to ask.”

In Social Care Leader -v- Health Care Provider (ADJ-00007420) the Respondent received an anonymous letter making allegations against the Complainant. The Respondent carried out an investigation, the investigator also interviewed witnesses and management, the Complainant was given a copy of the investigation report but ultimately terminated following a disciplinary hearing. The Adjudicator noted as follows: “I note that the Respondent acted upon an anonymous letter of complaint. I note that the Respondent relied upon witness statements that were withheld from the Complainant. I find that in doing so the Respondent failed to provide fair procedure. It is a fundament right for an individual to confront their accuser. There are mechanisms available to protect such witnesses. …However, I find that the Respondent’s reliance upon an anonymous complaint and withheld witness statements has rendered this dismissal procedurally unfair.”

The question for the Adjudicator to consider is whether a reasonable employer would compel an employee to respond to or offer a defence to allegations of inappropriate behaviour that have not properly been put to the Claimant and the Claimant has not been afforded an opportunity to see any statements of his accusers, confront or crossexamine such anonymous accusers. Within the notice of a disciplinary hearing dated 7th March 2022, the Claimant was advised by the Respondent as follows: “There may be other individuals who you believe can be of assistance in clarifying matters at the hearing….If that is the case, please give us at least two working days prior notice of their names and contact details in order that we can attempt to ensure that they are present” Ironically, the individuals who would have been in a position to clarify matters at the hearing would have been the anonymous colleagues interviewed as part of B’s investigation, and the Claimant is a stranger to the names and contact details of such individuals.

“Whether or not the company can have trust and confidence in you going forward” However, it is submitted that Ms K, HR Manager had already determined the Respondent’s position on this allegation, whereby within Ms. K’s earlier letter dated 25th February 2022, the following was stated: “The company’s view is that, taken as a whole, the trust that is necessary for you to carry out your role as Manufacturing Manager and as a member of the management team is broken” It is therefore clear that the Respondent had pre-determined that that trust and confidence in the Claimant had been “broken” The Claimant maintains that this predetermination irredeemably tainted the subsequent disciplinary process, and the very short disciplinary process was merely window dressing as the Respondent had already made up their minds to dismiss the Claimant.

25th February 2022 By letter of this date, Ms K confirmed that the company’s view that the trust for the Claimant to carry out his role as Manufacturing Manager and as a member of the management team was broken and before making “a final decision on your employment”, the Respondent would “continue the garden leave for one further week” to allow one final opportunity to comment. It seems clear that the disciplinary process was in the later stages by this point and this correspondence has all the hallmarks of a Final Written Warning, albeit this has not been stated by the Respondent. The Claimant responded to this letter. 7th March 2022 The Claimant was formally invited to attend a disciplinary hearing on 14th March 2022  and placed on “paid suspension”. Throughout the process, the Respondent failed to clarify if the Claimant was subject to a disciplinary process, whereas it would seem that with effect from 20th January 2022 he was the subject of a disciplinary investigation. At no stage (prior to 7th March 2022) did the Respondent warn the Claimant that he was under disciplinary investigation or that his employment was at risk.

The Respondent contend that the “Termination Date” was 15th March 2022 (the day after the disciplinary hearing on 14th March 2022). However, the Claimant was given notice of his termination when placed on garden leave “effective immediately” on 11th February 2022. Paragraph 24 “Notice” of the Claimant’s contract of employment  states that his employment may be terminated by either party by giving one month’s prior notice in writing. It proceeds to defines “garden leave” as the period the employer “require you to remain away from work during such period or periods of your notice period as we may determine”. Thereby, once the Claimant was placed on garden leave on 11th February 2022 the Respondent had already made the decision to terminate the Claimant’s employment required him to remain away from the workplace during the termination notice period. In A Director -v- An Event Management Company (ADJ-00016243) the term “garden leave” was used for the Claimant’s paid leave during the consultation process and the Claimant argued that the use of the term by itself is evident that the decision to terminate the Claimant’s employment had already been made. The HR Manager (Mr. M) explained that he had mistakenly used the term “garden leave” as he did not realise at the time that this term should only be used during a notice period. The Adjudicator concluded:- “I find this to be quite incredulous. The Head of HR of an organisation of the stature of the Respondent organisation not knowing what garden leave was? In placing the Complainant on “garden leave” Mr M was effectively issuing the complainant notice that his employment was coming to an end.” Similarly, Ms K, HR Manager was a signatory on behalf of the Respondent for the Claimant’s contract of employment, issued all the letters placing the Claimant on continual “garden leave”, issued the notice of disciplinary hearing letter and drafted the allegations against the Claimant for the purpose of the disciplinary process. It is again clear that the disciplinary process was merely window dressing, as Ms K on behalf of the Respondent had pre-determined the matter prior to the disciplinary hearing having issued the Claimant notice on 11th February 2022 that his employment was coming to an end i.e. over a month prior to the disciplinary hearing.

Was the disciplinary hearing fatally flawed?

(a) The allegations were drafted by Ms K, HR Manager arising out of matters arising between the Claimant and his interactions with Ms. K.

(b) The notice of disciplinary hearing letter, drafted by Ms. K, apart from B’s report, limits the documents to be taken into account in the making of the decision would be limited to letters written by Ms. K. None of the correspondences written by the Claimant formed part of the evidential documentation.

(c) The documents specifically included the letter dated 25th February 2022 confirming the company’s view that trust in the Claimant was broken and that the matter had been determined in advance of the hearing.

(d) The hearing lacked independence and impartiality due to Ms K, HR Manager involvement and bias in limiting the scope of documentation to documents solely drafted by Ms. K.

(e) The proposal to provide names and contact details of individuals who can clarify matters was disingenuous and unfair in circumstances where the Respondent had ensured that such individuals remained anonymous.

(f) None of the Claimant’s anonymous accusers were interviewed or statements taken for the purpose of the disciplinary hearing and if they were, such interviews/statements were not presented to the Claimant during the process.

(g) Thereby, the details of the allegations or complaints were never put to the Claimant and thereby the Claimant was not given the opportunity to respond fully to the allegations or complaints.

(h) The Claimant was not afforded an opportunity to confront his accusers or cross-examine such anonymous colleagues on the allegations outlined in B’s report.

(i) The process lacked transparency.

(j) The process lacked independence and impartiality due to the involvement of Lisa Kenneally, HR Manager throughout the process.

Did Mr D adopt fair procedure and natural justice in his decision to terminate the Claimant with immediate effect?

(a) Mr. D did not give any explanation for his decision, save to repeat the allegations drafted by Ms K, HR Manager.

(b) No consideration or explanation was given as to whether each or any of the allegations constituted misconduct or gross misconduct. No finding has been made that the Claimant was guilty of gross misconduct. Mr. D merely concludes that the Claimant “should be terminated with immediate effect”.

(c) In the absence of a finding of gross misconduct, Mr. D did not consider any sanction short of immediate dismissal.

(d) Consequently, the decision to dismiss the Claimant was not within the range of reasonable responses of a reasonable employer.

Did Mr D fairly consider the matter prior to making his decision?

The Claimant attended a disciplinary hearing on 14th March 2022 with Mr. D. Mr. D sent his decision the following day, 15th March 2022 terminating the Claimant’s employment. It is submitted that little or no consideration was given to the decision-making process by Mr. D and it would seem that rather than giving the consideration the case before him and the appropriate sanction, he was more inclined to ensuring the Claimant signed and returned a complex and detailed Termination Agreement, which had been prepared within that same 24 hour period.

Was the entire matter predetermined in advance of Mr. D’s decision of 15th March 2022?

The Claimant will maintain that the decision was pre-determined in advance and rushed through. A detailed Termination Agreement was allegedly drafted between the hearing date of 14th March 2022 and the issue of the termination letter on 15th March 2022. This would seem to be hurriedly pushed through to avoid awaiting until the following week, and thereby necessitate paying the Claimant for public holidays on the following days, namely St. Patrick’s Day (17th March 2022) and 18th March 2022 (national commemorative day).

Appeal -v- Termination Agreement

More confusingly, the Respondent allowed the Claimant 14 days to review and consider the Termination Agreement, yet only allowed 5 days to appeal the dismissal. Any attempt to seek legal independent advice on the Termination Agreement rendered the Claimant barred from appealing the decision. By the time the Claimant sought legal advice and a view was given by his legal advisors, he was out of time to appeal the decision to terminate him.

The Complainant gave sworn evidence summarised as follows:

He outlined the history of his employment with the Respondent and confirmed he was engaged as Manufacturing Manager on a salary of €75,000.  He referred to previous investigations and that he was vindicated in all. He took part in coaching along with two middle managers and HR.  He participated in the B report and did not see any anonymous complaints until after the report was issued.  He wanted to see the full report.  He had some questions about the involvement of certain personnel and made some references to unprofessional behaviours.  He maintained that his questions regarding certain matters were ignored.  He contended that 90% of the criticism of him was incorrect and as the report itself stated it was ‘folklore’.  He was put on garden leave on 22nd February 2022.  When he checked the meaning of this, a friend who is a CEO of a company told him it means he is fired.  He told Mr D he only wanted to engage by correspondence.  He had no faith in verbal communications.  He gave evidence of mitigation of his losses since his dismissal. He had gained employment but at a considerably lesser salary.

Findings and Conclusions:

The Complainant was dismissed on 8th March 2022 following a disciplinary hearing held on 7th March 2022.  One of the reasons given for the dismissal were his inappropriate behaviour towards colleagues.  Other reasons cited were his unwillingness to engage and address the concerns in the external consultant’s report (the B report) and his refusal to meet management to discuss the report.  The dismissal letter concluded that the company could not have trust and confidence in the Complainant going forward.

The B report stated 

“the process was not a disciplinary process nor was it an investigation in the general employment sense.It was an assessment of the current concerns within the workforce to establish, in the first place, whether difficulties exist and to what extent.”  It also stated:

“I am satisfied that the incidents described, if complained about, would be sufficient to establish there was a case to answer requiring an investigation. In the circumstances of this process, no formal complaint is to hand and none of the interviewees were prepared to make their complaint formal.”

In essence, the report states that if the incidents had been complained about an investigation would be required, and secondly that no formal complaint is to hand.

This is significant as in the first place, no formal complaints had been received by the Respondent. The Complainant took exception to the report, and to the fact that anonymous complaints had been made about him with no right to question them.  He had many counter complaints which he had no opportunity to put forward.  The report stated that if the incidents described had been complained about, they would be sufficient to establish if there was a case to answer.   The Respondent did make many efforts to discuss the matter with the Complainant, and it is regrettable that he did not engage and must be deemed to have contributed to the situation in which he found himself.   However, the Respondent moved to a disciplinary process involving allegations of inappropriate behaviour and lack of willingness to address concerns, in a context where the Complainant had no knowledge of the identity of those who complained about him or opportunity to question them.

S.I. 146 of 2000 which is the statutory instrument setting out fair procedures and best practice in grievance and disciplinary matters specifically provides that details of any allegations or complaints are to be put to the employee, that the employee is given the opportunity to respond fully to any such allegations or complaints and that the allegations or complaints may be set out in writing and that the source of the allegations or complaints be given or that the employee be allowed to confront or question witnesses.

While the Respondent did wish to engage with the Complainant at an early stage regarding the report and while the Complainant’s lack of willingness is a matter of concern, in the context of natural justice and fair procedures and transparency as to the allegations and source of complaints, and opportunity to know the source and question witnesses, this vital piece of the process was missing.   In the circumstances, I find the dismissal of the Complainant to be an unfair dismissal.  The Complainant however has made some contribution to his situation and I have taken this into account.

I find that the remedies of re-instatement or re-engagement are not appropriate in the circumstances where the company has ceased to trade.  I award the Complainant compensation for his unfair dismissal in the sum of €19,125. 

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

 I have decided that the Complainant was unfairly dismissed and I award him the sum of €19,125 compensation.

Dated:   14th February 2024.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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