Complainant

Respondent

Parties

Neil  Molloy

Western Community Broadcasting Services Ltd Galway Bay Fm

Complainant

Respondent

Anonymised Parties

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Representatives

Marie O Connor SIPTU

Declan Thomas IBEC

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-00061539-001

13/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00061539-002

13/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 Withdrawn at hearing

CA-00061539-003

13/02/2024

This is a claim of alleged unfair dismissal. Dismissal as a fact is not in dispute. The Complainant was dismissed on grounds of serious misconduct following the investigation of two complaints against him made by the CEO of the Respondent. During the second incident, the CEO suspended the Complainant. The complaints made by the CEO were investigated by an independent external investigator. The investigation upheld the complaints. There followed a disciplinary process conducted by the Company Secretary who decided on dismissal as the appropriate sanction without payment in lieu of notice. An appeal of the disciplinary sanction was heard by the Chairman of the Board and upheld. The disputed issues were in the main related to the severity of the sanction and the contention that this was a predetermined outcome based on actions taken by the Respondent while the disciplinary and appeal processes were ongoing. Firstly, in respect of an advertising campaign in July 2023 prior to the disciplinary hearing which suggested the Complainant, who was suspended at that stage was no longer a part of the show in question and later on,  the advertising of the Complainant’s position on Galway Bay FM Job Spot prior to the conclusion of the  appeal stage. It is contended that the decision to dismiss as the form of sanction was disproportionate and further suggested that the dismissal of the Complainant was a cost cutting exercise. Payment in lieu of notice was also sought. A complaint under the Terms of Employment Information Act concerning a failure to provide a statement of terms was withdrawn as these were provided to the Complainant in a document dated by the CEO as 8 June 2024, the date of the second incident between the two employees and the date on which the Complainant was suspended by the CEO.

Post the hearing I received further submissions from the parties on the subject of the advertising of the Complainants position during the appeal stage. The post submission phase was initiated by the Complainant through his representative. I allowed for consideration of the submissions to the extent that I considered reasonable and as advised to the parties.

Dismissal as a fact is not denied. The Complainant was employed as a breakfast show presenter. His employment was terminated for gross misconduct on the 1st of September 2023 following a disciplinary process. An appeal process confirmed the disciplinary sanction in a decision on 11 October 2023. The annual salary was €51,240 comprising €45,000 and a supplement of €6,240 for producing a one-hour evening show.

The decision of the Respondent resulted from misconduct which represented a fundamental breach of trust and confidence necessary for the employment relationship to continue. The investigation, disciplinary and appeals process were all conducted in accordance with the Respondent’s disciplinary policy and procedures whereby fair procedures and natural justice were afforded to the Claimant by the Respondent at all times. At all meetings the Complainant was afforded the right to representation. Referencing section 6(4)(b) of the Unfair Dismissals Act, the Respondent submitted that as the Complainant’s dismissal arose wholly from his conduct it was not an unfair dismissal. The submission went on to address incidents between Mr Neil Molloy, the Complainant, and Mr Cormac O’Halloran, CEO, on June 1st  in the office of the Programme Director, Mr John Divilly who was present during the whole occurrence and was also subject to verbal assault by the Complainant. The CEO recorded a note in writing and made a formal complaint regarding the incident by email dated the 6th of June 2023 to the Company Secretary. A further incident occurred on the 8th of June 2023 where the Complainant approached the office of the CEO and requested to speak with him. The Complainant stated that he had engaged in behaviour that was inappropriate and that he wished to apologise for same. Mr O’Halloran advised the Complainant that he had made a complaint to the Board regarding the incident on June 1st, 2023. It is the position of the Respondent that at this meeting the Complainant again began raising his voice and again insulted the CEO with disparaging remarks. The CEO advised the Complainant that if the Board decided to proceed with an investigation he would be provided with details of his complaint. He then informed the Complainant that because of his wholly disrespectful, intimidatory, insubordinate and verbally abusive behaviour that he had no option but to suspend him for the immediate future pending investigation advising the Complainant that the Board would be in touch to confirm their decision regarding his complaint. Mr O’Halloran again recorded a note of this incident in writing. On the 9th of June 2023 the Complainant and his union official were informed in an email form the CEO that he had no option but to suspend the Complainant on full pay pending investigation of both incidents. An independent person would be requested to carry out the investigation. The CEO also confirmed that he was now recusing himself from any further participation in the management of the issue given that he was one of the active parties in the complaint.

An independent third-party investigator was appointed to conduct an investigation into the complaints raised by Mr O’Halloran against the Complainant. Terms of reference for the investigation were drawn up and approved by the Company Secretary and the Complainant. At the hearing the Respondent confirmed that the investigator was not known personally by them and had no connection with any member of the management in the employment prior to the investigation.

Following a full and comprehensive investigation a report was produced on the 11th of August 2023. That report found that the complaints by Mr O’Halloran against the Complainant relating to the incidents of the 1st of June and the 8th of June 2023 were upheld.

There followed a disciplinary hearing conducted on the 24th of August 2023. Present at the meeting was the Complainant, his union official and a Mr Conor Costello, Company Secretary, who was appointed to conduct the hearing. The outcome of the disciplinary hearing was communicated to the Complainant by an email in which he was advised that due to the serious nature of his misconduct the decision was to dismiss him from duties with immediate effect and his position would end on the 1st of September 2023. He was advised of his right to appeal. An appeal was lodged by the Complainant on the 4th of September 2023 and following an exchange of correspondence and available dates an appeal hearing was conducted on the 28th of September 2023. On the 8th of October the Complainant and his union official advised of some amendments to the draft minutes and a decision was issued on the 11th of October 2023 confirming that the decision to terminate the Complainant’s employment was upheld.

The summary of the Respondent’s position in respect of the procedures is that fair procedures were followed in all instances. Relying on ADJ/00026198, the Respondent cited the decision on adjudication officer that “Subjecting a colleague to such abuse in the workplace constitutes unacceptable behaviour and cannot be tolerated by a reasonable employer”. In this case the adjudication officer also concluded that having carefully considered the case in detail and recognising that there were procedural flaws in that case, he still held that the decision to dismiss was deemed the appropriate sanction by that of a reasonable employer. The independent investigation report in this case found that the manner in which the Complainant behaved constituted insubordination both towards the CEO and his line manager. The Respondent submits that the decision to dismiss the Complainant was fully in line with the Company procedures and was proportionate to the seriousness of the incidents at hand in accordance with the general principles of natural justice and fair procedures and in full compliance with the provisions of section 6(4) of the Unfair Dismissals Act.

Key points of Witness Evidence

Conor Costello Company Secretary

The witness conducted the disciplinary hearing. In evidence he confirmed that he is more senior to the CEO in the Company. He received all the documentation from the investigation and satisfied himself that correct procedures were followed during the investigation. In explaining his decision, he stated in evidence that he could not see how they (the CEO and the Complainant) could come back to a working relationship.

In relation to the ads which excluded the Complainant he was not aware of these until it was raised by SIPTU and he was not sure who had made the decision which he believe resulted from a misunderstanding. The ads were removed. He confirmed in cross examination that the Complainant did ring him previously about the removal of the fuel cards but it was not his role to decide and he was not aware of (it) - the decision. Also in cross examination he did accept that the conduct of the Complainant was out of character which he took into consideration because he was fully aware of the consequences of dismissal for the Complainant. Asked if he considered other options short of dismissal, he said he did but decided the sanction of dismissal was appropriate. In response to the AO, the witness agreed he had never come across a situation where the person who the grievance with another employee also suspended that employee.

Peter Allen Chair of Board

The witness conducted the appeal hearing. He stated in evidence that he considered all the points of appeal and read all of the papers before the appeal so that he had a detailed knowledge. Regarding the severity of the sanction the witness described himself as a solicitor suggesting a wide range of experience but he found this situation among the worst he had encountered describing it as an employee verbally confronting a supervisor. Regarding the sanction he concluded that dismissal was the only option open to him. There was a breach of trust. He acknowledged there was an apology, the words were said but he did not think they were meant. However, the Complainant lost his temper again on the day he went to give the apology-that was important to the witness. This was not a once off incident.

 Regarding the loss of the fuel card which had upset the Complainant and contributed to the dispute with the CEO-the witness replied the Complainant was not the only one affected by that decision-others were as well.

Asked by the AO why, if he was referring in his evidence to the two incidents, he referred to only one in his decision, the witness said that was an error.

Asked by the AO how the advertising of the Complainants position before the outcome of the appeal hearing and without the approval of the Board, might appear, the witness replied he can see that(how it might look).

The Complainant representative agreed that there were no issues with the manner in which the independent investigation was conducted and that the report in general was not disputed except for any contention that the Complainant was verbally or physically threatening in any way towards the CEO. Reflecting the grounds presented at the various stages of the internal processes the union contended that there was a background issue concerning a fuel card and the removal of same by the CEO. At the end of May 2023 there was a discussion with Mr O’Halloran in relation to a proposal that the Complainant would take on a second role. And the Complainant came away from that meeting very excited and very happy at the response. On the 1st of June 2023, the Complainant was informed by Mr Richards that the CEO had said that the option of taking on an additional role outside of Galway Bay FM was a nonrunner. The dispute with the CEO followed when the CEO entered the room and there was a verbal exchange between the parties. Mr Richards did not intervene in any way and he contended that he was afraid for his own position. After the exchange, the Complainant left the room.

 The Complainant acknowledges that on the night of the incident  he was advised by Mr Richards to apologise to the CEO, but he did not wish to do so at that time. On the 8th of June the Complainant went to the CEO’s office to apologise for what he had said on the 1st of June. After he apologised the CEO addressed him in a manner which he considered condescending and then went on to say that he had put in a formal complaint about him to the Board. He was very upset on hearing this and asked why he had not been told about the formal complaint [before the 8th of June]. There followed further exchanges in which the CEO is said to have threatened to deduct wages from the Complainant if he walked out and there was an exchange about a contract, or the lack of a contract and the CEO then informed him that he was suspending him and that he was to leave the building and be escorted out. It is the position of the Complainant that had he known there was a formal complaint he would not have approached Mr O’Halloran to apologise; he should have been aware of it sooner and he was not aware of the gravity of the situation on the 8th of June 2023 when he went to Mr O’Halloran’s office. By the 16th of June when an investigator was appointed the union contends that the Complainant had not been furnished with either complaint.

In terms of procedures and the contention of a predetermined outcome, on the 5th of July 2023 SIPTU emailed the Company Secretary because the Complainant had become aware of some ad campaigns on social media in relation to the “Mollie in the Morning” show. That ad featured his co-presenter only and he had been removed. It is contended that it was abundantly clear from these ad campaigns that the decision to dismiss the Complainant had already been taken. The investigation was merely a box ticking exercise. The Company Secretary responded that he was not aware that the Complainant was not in an ad campaign and that the investigation was ongoing and fair procedures were being followed. It remains the case that someone issued an instruction to remove the Complainant from the ad campaigns. Subsequently the Complainant was “added” to the ad campaigns. The removal from the ad campaigns had a serious adverse effect on the Complainant. He felt that he was removed on purpose to give the impression that he was no longer an employee of Galway Bay FM. On the 27th of September 2023 the Complainant sent an email to the person he understood to be the data protection officer seeking a subject access request under GDPR. However, he was taken aback to receive an email from Mr O’Halloran on the 28th of September 2023 which effectively criticised the Complainant for the manner in which he had submitted a GDPR request and that they would not respond to any such request until it is submitted through the appropriate channels. It was submitted the tone of the email is rude and aggressive and typical of the manner in which the CEO conducts himself and is completely inappropriate. Neither did he furnish the policy in relation to GDPR requests.

The disciplinary hearing of the 24th of August 2023.

Mr Costello noted from the report that “No physical violence” occurred on the 1st of June 2023 and this was accepted by him. It was submitted that the Complainant’s behaviour was completely out of character. The Complainant had been nominated for an IMRO on the 23rd of August 2023 which evidences the quality of his work. The Complainant also stated he should have been made aware of the complaint of the 6th of June sooner.

An appeal of the disciplinary sanction was submitted on the 4th of September 2023. On the 6th of September the Complainant’s position was advertised on Job Spot and the applications were to be made to the CEO, Cormac O’Halloran. It was submitted that this clearly shows that the outcome of the disciplinary and appeal hearings were a predetermined outcome. The appeal hearing had not even been arranged and his job was advertised. The Complainant maintained from the outset that “getting rid of him” was a cost cutting exercise for the CEO. The appeal hearing took place on the 28th of September and the outcome of the appeal was issued to the Complainant on the 11th of October 2023 rejecting his appeal against dismissal. The draft minutes were issued to SIPTU after the rejection of the appeal and the outcome had issued. Amendments were submitted on the 8th of November 2023 to which the appeal hearer, Mr Allen, did not reply despite email reminders.

Disproportionate sanction.

It was submitted that Respondent did not have “substantial grounds” justifying the dismissal of the Complainant. He was dismissed following two incidents with Mr O’Halloran who had treated the Complainant in a very disrespectful manner from the outset of them meeting when he took over as CEO. The incidents in question are totally out of character for the Complainant. It is abundantly clear that this is a witch hunt by the CEO. If there were issues with the previous CEO giving the Complainant the use of a fuel card, then this should have been dealt with in a proper manner by Mr O’Halloran. This did not happen.

The Complainant had service with Galway Bay FM with a break on and off for 30 years. He had an unblemished record, an excellent reputation and these were not taken into account by the Respondent. Citing the Labour Court in Kilsaran Concrete & Vet (UDD1611)  “summary dismissal is the nuclear weapon in the employer’s arsenal of disciplinary sanctions. …we have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislator had in mind such things as violent assault or larceny or behaviour in the same serious category”. SIPTU contended that the use of the employer’s “nuclear weapon” against the Complainant was obviously disproportionate and therefore unreasonable within the meaning of s6(7)(a) of the 1977 Act. There were other lesser sanctions that could have been applied. No harm was caused. There was no financial loss. The Complainant is of the view that he was “set up” by Mr O’Halloran when he walked into Mr Richards’ office that day. There was no physical assault and this was acknowledged by the Company Secretary at the disciplinary hearing. There is no evidence that the Company made any consideration of a lesser sanction alternative to dismissal. No mitigating circumstances were taken into account and other case law was cited regarding the disproportionate nature of the sanction as contended.

The complaint under the Terms of Employment (Information) Act had been withdrawn as the contract was issued. The complaint of unfair dismissal was associated with a claim for pay in lieu of notice amounting to €1,970.76.

Redress sought.

Compensation was sought by way of redress. At the hearing the statement of losses was submitted by the Complainant giving a loss of earnings compared to alternative employment from the 1st of September 2023 of €14,633.42 and projected future losses of earnings of €7,652.14, giving total losses of €22,286.

In arriving at a decision in this case, I am conscious of the submission by the Complainants representative of the impact of the actions of the Respondent during the internal processes and the longer-term impact of the dismissal within what is a small locally based industry i.e. local radio, where he has worked for decades. There are issues of substance regarding the extent of the driving force that was the part played by the CEO,  the other employee, in terms of the handling of issues, the complaints, the suspension and decision around the publicity issues including the advertising of the Complainants position while he was in an appeal process. Indeed, it is difficult to imagine a situation in which one person, and CEO of an employment, would play and be allowed to play such a central part in so many respects. To be specific regarding the different elements where the CEO was the key driver, it was the CEO who terminated the fuel card; it was the CEO who expressed reservations to the line manager about the outside work option requested by the Complainant(which is actually provided for in the contract dated on June 8th); it was the CEO who made the detailed complaint and set the scene for the investigation ,choosing those elements of the procedure of serious misconduct; it was the CEO who by then had submitted a complaint against Complainant who summarily suspended him on June 8th ; it appears more likely than not that the CEO approved the advertisement for the morning radio piece from which the Complainant was excluded and there is no doubt that it was the CEO who approved the advertisement of the Complainants post once the disciplinary process had concluded with his dismissal. A reasonable person not otherwise involved in this matter, might conclude that, in all of the circumstances faced with the overwhelming involvement of the CEO in the case, the Complainant, Mr Molloy ’didn’t stand a chance’. As an objective third party, I believe my summation speaks for itself.

The primary consideration in any decision to dismiss, remains that of the substance. In this regard, I consider the words of the decision maker, where he spoke of not being able to see how they could restore their working relationship(referring to the CEO and the Complainant), as the most credible and significant, not least because the evidence had a ring of conviction and honesty. The references by the appeal hearer to the second incident are also significant in understanding his decision. The Complainant lost his temper on June 1st. The external investigation upheld the complaints against him regarding that date made by the CEO. At that point, a once off incident, acknowledged as out of character, where there was no act of violence, coming from an employee of long standing who was trying to deal with the consequences of a cutback in his income might not have justified a dismissal. By his actions on June 8th where he reacted with anger about the news of a complaint both undermined his own apology, such as it was, effectively sealing his own fate. On the substance of the case therefore, I find the decision to dismiss was not unfair. A  decision of gross misconduct was excessive in all the circumstances. Payment in lieu of notice would have been a decent act by the Respondent, but it does not change the fundamentals of the case against the Complainant.

CA-00061539-001 Unfair Dismissals Act 1973 as amended. The complaint by Neil Molloy against Galway Bay FM is not well founded

CA-00061539-002-Minimum Notice and Terms of Employment Act 1973 as amended The complaint by Neil Molloy against Galway Bay Fm was not well founded.

Dismissal-procedures-actions of employer during process