Complainant

Respondent

Parties

Trevor  Beacom

Shannon Heritage Dac

Representatives

Victoria Stephens, SIPTU

William Gillman, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00067053-001

31/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00067053-002

WITHDRAWN

31/10/2024

The Complainant commenced his employment with the Respondent on 28 August 2023. The date of the termination of his employment was in dispute.

On 31 October 2023, the Complainant referred his complaints against the Respondent to the Director General of the WRC. The Respondent rejects the claims.

An adjudication hearing for the purpose of the investigation of the claims was scheduled for 13 February 2025.At the hearing the Complainant withdrew his claim pursuant to section 77 the Employment Equality Acts, 1998 as amended.

The Respondent submits as follows.

The Complainant was dismissed from his employment with the Respondent for gross misconduct, following a thorough process, undertaken by the Respondent to ensure maximum fairness and transparency was afforded to the Complainant, in accordance with fair procedures and natural justice

Background to the Respondent

Shannon Heritage is one of Ireland’s largest visitor-experience operators. Shannon Heritage employs over 300 people in the peak tourist season.

Background to the Complainant

The Complainant was employed by the Respondent from 28 August 2023 and was provided with a full-time contract of employment in the capacity of Duty Operations Manager with a salary of €40,601.

Preliminary Matter: Service Requirements

Section 2 (1) of the Unfair Dismissal Act explains:

“2.— (1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons: (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him”

The Complainant commenced his employment with the Respondent on 28 August 2023. The Complainant was dismissed due to gross misconduct on 13 August 2024.

The Complainant clearly does not have the required 52 weeks continuous service to pursue this claim under Unfair Dismissal Act, 1977, and thus it is submitted that the Adjudication Officer does not have the requisite jurisdiction to hear this claim, and nor can they proceed to hear the substantive case until this matter is determined.

Background to the claim

On 14 May 2024 four female employees lodged complaints against the Complainant relating to inappropriate behaviour under the company’s Dignity & Respect Policy.

The Respondent engaged an independent third party to investigate the complaints.

Ms A was interviewed on 28 May 2024 regarding the complaints she made. Ms A was afforded the opportunity to comment and provide feedback on the investigation on 2 July 2024.

Ms B was interviewed on 28 May 2024 regarding the complaints she made. Witness interviews took place on 5 June 2024 to establish more information regarding these complaints. Ms B was afforded the opportunity to comment and provide feedback on the investigation on 1 July 2024.

Ms C was interviewed on 28 May 2024 regarding the complaints she made. Witness interviews took place on 20 June 2024 and 4 July 2024 to establish more information regarding these complaints. Ms C was afforded the opportunity to comment and provide feedback on the investigation on 28 June 2024.

Ms D was interviewed on 28 May 2024 regarding the complaints she made. Witness interviews took place on 5 June and 20 June 2024 to establish more information regarding these complaints. Ms D was afforded the opportunity to comment and provide feedback on the investigation on 1 July 2024.

The Complainant was provided with the minutes of these meetings before being interviewed regarding these complaints on 17 June 2024. The Complainant was represented at this meeting and was afforded the opportunity to respond to the allegations in full.

The Complainant was afforded the opportunity to comment and provide feedback on the investigation and declined to do so.

The external investigator published the findings and conclusion of their investigation.

On 11 July 2024, the Complainant was invited to a dignity and respect outcome meeting.

On 16 July 2024, the Complainant attended the dignity and respect outcome meeting. The Complainant was represented at this meeting by Victoria Stephens of SIPTU. The Complainant was provided with all relevant documentation in advance of this meeting and was afforded the opportunity to contribute to the investigation reports. Minutes were taken at this meeting, and the Complainant was afforded the right to comment and agree on these minutes.

On 24 July 2024, the Complainant received the outcome of the investigation. The letter outlined that one of the complaints from Ms B was upheld and was in breach of the Dignity and Respect Policy. Two of the complaints from Ms D were upheld and were in breach of the policy. Six of the complaints from Ms A were upheld and were in breach of the policy. Five of the complaints from Ms C were upheld and were in breach of the policy. The letter outlined that the Respondent would proceed with disciplinary proceedings.

On 25 July 2024, the Complainant was invited by letter to attend a disciplinary meeting scheduled for 30 July 2024. The letter outlined that the Complainant was found to be in breach of the company’s Dignity and Respect Policy after investigation. The Complainant was provided with the Dignity and Respect Policy alongside the Company Disciplinary procedure. The letter outlined that the Complainant has the right to representation and the Complainant could provide evidence and response to the allegations at this meeting. The Complainant was warned that proven actions of serious or gross misconduct may lead to a sanction up to and including dismissal.

The disciplinary hearing took place on 6 August 2024 after being rescheduled. The Complainant was represented at this meeting by Ms Stephens, SIPTU.

On 13 August 2024, the Complainant was issued with a decision letter following on from the disciplinary hearing. The letter confirmed that the Complainant was afforded the opportunity to respond to the allegations in full and was provided with all evidence in advance of the meetings.

Having taken all the evidence into account it was found that the Complainant’s behaviour constituted sexual harassment. The Respondent’s Disciplinary Procedure outlines that acts constituting sexual harassment constitute gross misconduct. The disciplinary officer considered all other potential sanctions short of dismissal, however, the lack of remorse from the Complainant alongside the serious and repeated nature of the breaches relating to multiple colleagues left the disciplinary officer no choice but to summarily dismiss the Complainant.

As the Complainant was summarily dismissed due to gross misconduct, the dismissal was effective immediately from 13 August 2024. The Complainant was afforded the right to appeal this decision.

The Complainant appealed this outcome and was invited to attend an appeal meeting by letter on 16 August 2024. The appeal meeting was scheduled for 22 August 2024.

The Complainant’s representative was unable to attend on this date and the hearing was rescheduled as a result. A new invite letter was issued on 28 August for a hearing on 5 September 2024. The appeal hearing took place on 5 September where the Complainant was represented by Ms Stephens of SIPTU. The Complainant was afforded the opportunity to make representations at this meeting and bring forward any evidence he felt relevant.

The Complainant was issued with the outcome of the appeal meeting on 13 September 2024. This letter specified that the appeal was not upheld, and the sanction of dismissal was proportionate to the gross misconduct that occurred.

Respondent’s Position

In accordance with the Unfair Dismissals Acts 1977-2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.

Having considered all the facts, the responses and explanations of the Complainant were not considered reasonable nor sufficient such as to mitigate the extreme seriousness and far-reaching implications of his actions. The Complainant’s actions amounted to gross misconduct.

When considering what sanction to apply the Respondent had regard to the seriousness of the allegations and the representations made by the Complainant within the process itself.

In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney UD 843/1984 is as follows:

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

It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such the Respondent’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place. The actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. This position has been upheld by the Employment Appeals Tribunal on several occasions, including in Knox Hotel and Resort Ltd. UD 27/2004, where the Tribunal stated that:

“[The Complainant’s actions] destroyed the respondent’s trust and confidence in the Complainant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal.”

In relation to the procedures used to implement this dismissal, the Complainant was afforded all benefits of fair procedure, in line with the company’s policy, the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000) and the universal principles of natural justice. The Complainant was fully informed in advance as to the nature of the allegations against him. He was afforded the right to representation. He was further provided with several fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Complainant’s representations before any decision was made or action taken. Considering all the above, the Respondent believes that the dismissal of the Complainant was procedurally fair in all respects.

The Respondent contends that the actions of the Complainant contributed wholly to his dismissal. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council UD 43/1978, where the Tribunal saw appropriate not to award any redress to the Complainant considering his inappropriate actions.

Summary of direct evidence and cross–examination of Ms Gráinne Moran, HR Consultant

Mr Moran said that she investigated the complaints that were made against the Complainant. The Complainant received all the complaints and minutes of the meetings with the four complainants. The Complainant was given an opportunity to comment on the preliminary report, he did not avail of it.

Ms Moran confirmed in cross-examination that she was contacted by the Respondent and asked to investigate the matter between 15 and 25 May 2024. She confirmed that she did not contact the Gardaí in the context of the allegations.

SIPTU, on behalf of the Complainant submits as follows.

The Complainant commenced his full-time employment as a Duty Operations Manager at Bunratty Castle Shannon Heritage from Monday, 28 August 2023.

The Complainant worked successfully for the Respondent from the date of commencement. His probation period passed and was not extended, as such his probation period ceased, as per agreed contract, on the 28 February 2024.

On or around 22 May 2024, the Complainant received a letter by hand at 5:30pm as he finished his shift to advise him that complaints had been lodged against him.

On 11 June 2024, the Respondent provided the Complainant with a formal letter of invitation to a disciplinary meeting. The complaints contained within same dated back to the commencement of the Complainant's employment with the Respondent.

The Complainant was brought through an investigation process that was unfair and unjust and, it is argued, ageist and gender biased. The Complainant continued to work full-time as a Duty Operations Manager and fulfilled his flexible role. At no point was he informed or advised that his role was to be restricted in any way, and he was called in to cover on many occasions where and when needed. At no time was the Complainant suspended throughout the investigation process and continued to work as normal throughout the investigation.

On 13 August 2024, despite being denied due process, he was advised in person, prior to being handed a letter, of his termination and escorted publicly off the Respondent's premises.

The Complainant had not taken any annual leave and having worked over 1,365 hours in his working year, he had acquired statutory holiday entitlement of four weeks. This brings the Complainant passed the minimum 12-month period of employment, despite attempts by the Respondent's to deny him of same.

BACKGROUND TO THE COMPLAINT 

On 11 June 2024, the Complainant received, via email, a letter invitation to a disciplinary meeting to answer to four colleagues' complaints that were all universally made on 14 May 2024.

On 14 May 2024, Ms A, a colleague of the Complainant, lodged one of four complaints against the Complainant, after stating 'So this will be the rewrite of my report like you had requested', and 'There are a few elements that I have remembered and forgot to mention in my previous report and during the first meeting'. Ms A alleged that, dating back to 4 March 2024, she thought the Complainant was friendly, 'but now that I understand the situation, I know that his unprofessional and inappropriate behaviour started shortly after I started working.'

Also on 14 May 2024, Ms C lodged her complaint alleging that the Complainant demonstrated inappropriate behaviour in late August 2023. This would suggest allegations dated from the very onset of the Complainant’s employment with the Respondents as he only commenced employment on the 28 August 2023. Ms C alleged that when asked by Ms C to test a set of headphones, the Complainant is alleged to have said “hey beautiful". Ms C did not raise any concerns at that time and there is no proof that the Complainant, in fact, said this.

Also on 14 May 2024 Ms D lodged her complaint alleging that in November 2023 the Complainant made a comment to her, and she was alleged to have complained about this to a member of the Management. However, this was never documented or evidenced. Ms D further alleged that in February 2024, unevidenced again, the Complainant was coming up to the castle numerous times when she was on her own. Other alleged comments were detailed in this complaint.

Also on 14 May 2024 Ms B lodged her complaint. Ms B’s complaint is almost identical to the above complaints. Collusion was questioned but ignored.

On 27 May 2024 Ms Moran of HR Suite informed the Complainant of the investigation process that had occurred to-date.

SIPTU exhibited copies of the minutes of the investigation meetings. It was asserted that the decisions could be argued as predetermined.

CONCLUSION

It is SIPTU’s argument that the Complainant was brought through an investigation process after four ladies decided they did not like him.

The investigation process did not take into account the matters and concerns raised by the Complainant. The Respondent used the outsourced HR Company to deny the Complainant his right to be protected from vexatious and/or malicious complaints.

SIPTU questions why the Complainant, who was a full-time employee and was never put on suspension throughout the investigation, was found guilty of gross misconduct, when no complaint was ever received prior to that time in relation to his conduct by colleagues and or management. In considering the Court of Justice of the European Union's interpretation of the scope of the provisions of the Working Time Directive and how the overall purpose of Directive 2003/88/EC on working time is to protect the health and safety of workers, SIPTU says that the Respondent failed to do this with regard to the Complainant in this matter.

SIPTU submits that the conduct of the Respondent, as outlined above, is characterised by a level of unreasonableness, manifested in its actions throughout, which must be held unfair. The union asserted that the process was based on hearsay. It was also asserted that the sanction was too severe.

SIPTU took issue with the Respondent using an external HR company and distancing itself from the investigation. The union argued that the Respondent should have dealt with the initial stage of the process.

The Complainant alleges that he was unfairly dismissed. The Respondent rejects the claim.

The first matter to consider is whether or not the Complainant has the protection of the Act in terms of his length of service with the Respondent.

The Applicable Law

Unfair Dismissals Acts 1977 as amended:

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which that notice expires,

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Acts 1973 to 2005.

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specific purpose (being a purpose of such a kind that duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of expiry or cesser;

2. Exclusions

(1) Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him […],

There was no dispute that the Complainant commenced his employment on 28 August 2023. The Complainant was summarily dismissed on 13 August 2024.

The Respondent asserted that the Complainant was summarily dismissed on 13 August 2024 and, therefore, does not have the requisite service for the purposes of the Act.

The Complainant asserted that he had accrued annual leave and that the final payment which included outstanding pay, accrued annual leave and public holiday entitlements was made to him on 28 August 2024. He argued, therefore, that the date of the termination of his employment was 28 August 2024. Consequently, he accrued 52 weeks service with the Respondent.

In Twomey v O’Leary Office Supplies Ltd. [1997] ELR 42 the Employment Appeals Tribunal held that Section 1 “makes no reference to annual leave entitlement, pre-booked or otherwise as extending the date of dismissal, whether prior notice of dismissal was or was not given”. Therefore, the Complainant’s accrued annual leave entitlement cannot be taken into account when determining the date of dismissal.

It is clear that to enjoy the protection of the Act, the Complainant must meet the service requirement set out in the Act unless a provision of the Act exempts him from that requirement. The Complainant has not contended that any provision of the Act removes from him the statutory requirement to have acquired 12 months service in order that the protection of the Act would apply to him.

I must find, therefore, based on all the evidence and submissions that the Complainant had, at the date of the termination of his employment, less that the 12 months service required by the Act at Section 2(1)(a). On that basis I have no jurisdiction to adjudicate on the substantive issue of his dismissal.

The Complainant had, at the date of the termination of his employment, less that the required 12 months service and, on that basis, I have no jurisdiction to adjudicate on the substantive issue of his dismissal.

No jurisdiction – no service