ADJ-00052307

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00052307

Parties:

Complaints:

Date of Adjudication Hearing:  20/01/2025

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

These complaints were referred to the Workplace Relations Commission (hereinafter ‘WRC’) under Section 8 of the Unfair Dismissals Acts 1977-2015 and Section 79 of the Workplace Relations Acts 1998-2015 on 5th June 2024.  Following delegation to me by the Director, I inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence.  These complaints were heard in Lansdowne House on 20th January 2025.  The Complainant was self-represented and the Respondent was represented by Ms Alison Fynes BL instructed by Lewis Silkin Ireland LLP.  A number of HR witnesses appeared on behalf of the Respondent.  The hearing was held in public and evidence was taken on oath.  The Parties were made aware that their names would be published within this decision.  I amended the Respondent’s name from ‘Accenture (UK) Limited’ to ‘Accenture Limited’ in circumstances where the former had appeared on the Complainant’s contract owing to a typographical error but the latter was in fact his correct employer.  Written submissions and documentation was received on behalf of both Parties.  All of the evidence, submissions and documentation submitted herein have been fully considered herein. 

Background:

The Complainant was dismissed by the Respondent on 6th March 2024 for misconduct.  He referred two complaints to the WRC.  The first complaint was one of unfair dismissal wherein he sought reinstatement on a higher salary and/or compensation.  The Respondent contended that that the Complainant’s dismissal was substantially and procedurally fair and sought to have this complaint dismissed.  The second complaint was one of discrimination and harassment alleged against a senior colleague on the grounds of religion and race.  The Respondent raised a preliminary objection to the jurisdiction of the WRC to hear this complaint, contending that the subject-matter fell outside of the maximum statutory 12-month time-limit for referral.

CA-00063923-001 – Complaint of Unfair Dismissal

Summary of Respondent’s Case:

Evidence of the Employee Relations Lead with knowledge of the Complainant’s Disciplinary History

The Employee Relations Lead gave evidence outlining the factual background to this complaint from the Respondent’s perspective.  His role entailed oversight of the Respondent’s policies and case managing disciplinary processes.  He has full knowledge of the instant case.  He explained that the Respondent is an Irish registered information technology services company within the Accenture Group, a global group of companies specialising in providing information technology services.  The Respondent has over 6,000 employees in Ireland and the Group employs approximately 500,000 people globally.  The Complainant was employed by the Respondent as a Customer Service New Associate from 18th October 2021 until the date of his dismissal on 6th March 2024.  He was initially employed on a fixed-term contract and was made permanent from 18th July 2022.  He provided IT customer services for a client on behalf of the Respondent (hereinafter ‘the Client’) and worked at its premises in Dublin.  He earned a salary of €26,950 per annum. 

The Employee Relations Lead confirmed that upon the commencement of the Complainant’s employment, he had received New Joiner Orientation training in respect of the Respondent’s policies and his role on 27th October 2021.  Relevant to this complaint, this included training on the completion and submission of time reports (hereinafter referred to as ‘timecards’) on a twice monthly basis.  Documentary confirmation of the Complainant’s attendance was opened at the hearing along with his recorded feedback: “I enjoyed the presentation.”  A copy of this presentation, being the material furnished to him at the time, was also opened.  This included detailed step by step instructions with diagrams for the completion of timecards.

The Complainant was also furnished with key company policies including four relevant to this complaint, namely, the Time and Expense Reporting Policy, Sick Leave Policy, Behaving Professionally Policy and Disciplinary and Appeals Policy.  These policies including any updates are accessible to all employees on the internal intranet.  The Time and Expense Reporting Policy provides that employees are responsible for the correct reporting and timely submission of all time worked and violations of the Policy can lead to disciplinary action up to dismissal.  The Employee Relations Lead explained that adherence to this Policy is essential for the correct billing of clients and financial auditing / forecasting purposes.  The Sick Leave Policy required the submission of a medical certificate on the third day of absence and thereafter on a weekly basis.  It also requires employees to attend for occupational health assessments when requested and failure to do so “will be considered breach of policy which may lead to termination of payment and/or disciplinary sanction.”  The Employee Relations Lead confirmed that adherence to this Policy is critical to providing appropriate supports and follow-up to employees.  The Behaving Professionally Policy set out the ethical standards required of employees.  The Disciplinary and Appeals Policy set out the disciplinary process and listed the breaches that may lead to disciplinary action up to dismissal including serious breaches of any policies.  It also provided that a sanction remains in place until an appeal is determined. 

The Employee Relations Lead confirmed that as of April 2023, the Complainant had been subject to no less than three disciplinary processes.  The first arose from his placement on a Performance Improvement Plan (PIP).  The second arose from a log-in breach giving rise to a final written warning.  The third arose from a finding that he had sent duplicate emails to service users to artificially boost his target caseload in breach of the Behaving Professionally Policy.  Following the conclusion of the latter disciplinary process, the Complainant was informed by letter of 21st April 2023 that a decision had been taken to terminate his employment with eight weeks’ pay in lieu of notice.  The Complainant appealed this decision, contending that the duplicate emails had been caused by a bug in the system which had not been investigated.  He also complained that a pre-existing final written warning in relation to the log-in breach was too harsh.  Following an appeal hearing, he was informed by letter dated 17th May 2023 that a decision had been taken to replace the sanction of dismissal with a final written warning operative for 12 months until 17th May 2024.  In this respect, it stated: “I would advise you if you are subject to any further disciplinary action in this period, this may result in a further sanction under the Disciplinary and Appeals Policy up to and including dismissal.”  The final written warning in relation to the log-in breach was reduced to an informal caution in circumstances where a large number of other employees had also committed the same breach.  The letter also noted that the Client had investigated the possibility of a bug causing the duplicated emails but as there was no evidence to support this claim and no other employee had experienced a similar issue “… it is a fair and reasonable conclusion that you were sending these duplicated emails to increase productivity scores.”  Accordingly, a request by the Complainant to be transferred internally with a ‘clean slate’ was refused.  He was reinstated to his original role.  Despite confirmation that the matter has concluded and was closed, the Complainant repeatedly agitated the same point by email to HR, also seeking an apology and compensation for the impact of the dismissal on his mental health.  At the time, the Respondent had been undergoing a large-scale redundancy programme following the Covid-19 Pandemic making it more difficult to facilitate an internal transfer.  It was also noted that the Complainant had never formally applied for a transfer to any open role advertised internally during the course of his employment. 

During the appeal hearing, the Complainant had also alleged race discrimination and harassment against a Senior Team Lead.  In particular, he complained that the Senior Team Lead (who was also from Nigeria but from a different tribe) had been pressuring the Team Leads responsible for his supervision to manage him closely.  Accordingly, this had influenced every disciplinary action taken against him and had adversely affected his mental health.  The Complainant was requested to raise these issues in a meeting arranged with HR.  By email dated 1st July 2023 to the Complainant, HR confirmed that it had screened the two issues he had raised (one relating to the referral of work which he had apparently allowed to build up by the Senior Team Lead and the other pertaining to a subsequent interaction between them on 14th April 2023).  The email noted that having screened these issues in accordance with the Grievance Policy based upon the information provided, they did not constitute discrimination and harassment.  It requested further information from the Complainant in order to investigate the issues further which he never provided.

The Employee Relations Lead confirmed that a fourth disciplinary process arose in February 2024 leading to the Complainant’s ultimate dismissal on 6th March 2024.  On 11th January 2024, the Complainant had failed to submit his draft timecard on time as required by the Time and Expense Reporting Policy.  On 12th and 13th February 2024, the Team Lead had emailed the team to remind them to complete their timecards on the due date and warned of the financial consequences of a failure to comply.  On 14th February 2024 at 1.18pm, the Team Lead had emailed the Complainant stating that he had missed the deadline of 12pm that day for the submission of his timecard in breach of the Time and Expense Reporting Policy.  He highlighted that this was a persistent issue referencing the similar incident the month beforehand and confirmed that he had drafted and submitted his timecard on his behalf to prevent escalation.  In so doing, he had treated a combined total of 12 hours of work missed by the Complainant owing to being late for work eleven times within the last period as unpaid leave.  This was based upon the Complainant’s check-in and check-out times which were not disputed.  This is achieved by applying various codes from a drop-down menu to classify the nature of the time submitted i.e. time worked, annual leave, unpaid leave, etc.  A minute later at 1.19pm, the Complainant accessed his timecard and reclassified the 12 hours of unpaid leave as time worked before resubmitting the timecard at 3.27pm.  He had also selected the required declaration confirming that the timecard was correct when in fact he had not worked those hours.  On 15th February 2024, the Complainant’s Team Lead sent him a detailed email setting out his concerns about this incident and explaining how his actions were not in compliance with the various policies of the Respondent.  He sought justification for his actions by close of business, failing which the matter would be referred to HR for disciplinary action.  These email exchanges were opened and were not disputed by the Complainant.

Having not received any justification, on 16th February 2024, the Employee Relations Associate Manager emailed the Complainant informing him that a disciplinary hearing had been scheduled for 19th February 2024.  The email stated that this was in relation to a breach of the Time and Expense Reporting Policy arising from the unauthorised timecard amendment.  The email also linked the relevant policies and confirmed that the Complainant may bring a work colleague or a trade union official to the hearing.  On the morning of the hearing, the Complainant emailed the Employee Relations Associate Manager stating that the time proposed was “inconvenient” for him.  The Employee Relations Associate Manager responded by confirming rearrangement of the hearing for 20th February 2024.  Upon being informed of same, the Complainant emailed him back requesting that the hearing be held on 25th May 2024 as “currently I am not in the right state to participate effectively”.  The Employee Relations Associate Manager replied asking him to engage with HR regarding his sick leave to ensure compliance with the Sick Leave Policy and invited him to avail of the Employee Assistance Programme.  He also queried why the Complainant believed that he was unfit to engage in the process until after 25th May 2024.  On 19th February 2024, a HR Partner emailed the Complainant to inform him that an occupational health assessment was being scheduled with Medmark.  The Complainant was reminded of the Sick Leave Policy (which was linked) requiring mandatory attendance at scheduled occupational health appointments, the sick leave notification procedure and submission of medical certificates.  The Complainant did not attend for work over the next three days and on 21st February 2024, the HR Partner emailed him noting that he had failed to submit a medical certificate on the third day of absence as required by the Sick Leave Policy.  She also confirmed that a Medmark appointment had been made for him on 27th February 2024 at 2pm.  The disciplinary hearing was moved to 28th February 2024.  On 22nd February 2024, 2 hours and 39 minutes into his shift, the Complainant called in sick.  The HR Partner followed up with a further email on 22nd February reiterating the date and time of the Medmark appointment.  On the morning of the appointment on 27th February 2024, the Complainant replied to the HR Partner stating that he would “move forward” with his own doctor.  The HR Partner responded reminding the Complainant that his attendance was required by the Sick Leave Policy and a failure to attend at the Medmark appointment would constitute a further breach of the Sick Leave Policy.  Notwithstanding these repeated warnings, the Complainant failed to attend for his Medmark appointment. 

The disciplinary hearing went ahead remotely on 28th February 2024.  The Panel comprised of the Employee Relations Associate Manager and a HR Representative.  The Employee Relations Associate Manager opened the hearing by indicating that its purpose was to ascertain whether breaches of the Time and Expense Reporting and Sick Leave Policies had occurred and if so, to determine the appropriate sanction.  He informed the Complainant that summary notes would be taken during the hearing which would be furnished to him after the hearing in order to highlight any factual inaccuracies or missing information.  The Complainant opted to be unaccompanied and indicated that he was happy to proceed.  He also indicated that he could not open the link for the Disciplinary and Appeals Policy but was happy that it be reshared after the hearing.  The Employee Relations Associate Manager began by referring to his failure to submit his timecard in January and February 2024.  The Complainant contended that he had been on a tight schedule and had never been trained on the submission of a timecard.  He was then asked why he had resubmitted the timecard submitted by his Team Lead on his behalf, having amended it to change the periods of unpaid leave to paid leave.  In response, he stated that normally a Team Lead would only update a timecard in his absence and had not given him a “heads up” that he had submitted it on his behalf.  Additionally, a one-to-one meeting had not been held to clarify his unpaid absences before the time was removed from his timecard which would typically be held if an amendment was going to be made to reflect lateness and “We both updated the timecard at the same time due to lack of communication.”  

The Employee Relations Associate Manager also asked the Complainant about his rescheduling of the disciplinary hearing and his contention that he would not be fit for the hearing until after 25th May 2024.  The Complainant contended that his mental health had declined owing to personal and workplace issues and he had expected to be mentally fit by that date.  He claimed that he had previously flagged issues in work with HR but nothing had been done and he felt neglected by the Respondent.  He contended that whilst he was fit for work, he was not fit to engage in a disciplinary process.  When it was put to him, he denied that nomination of that date was in any way related to the fact that his final written warning was due to expire on 17th May 2024.  The Employee Relations Associate Manager then proceeded to outline the exchange of correspondence between the HR Partner and the Complainant concerning his failure to furnish sick certificates on time and attend the Medmark appointment on 27th February 2024 as required by the Sick Leave Policy.  The Complainant referred to two sick certificates from his GP, which he had submitted outside of the required three-day period, indicating that he was unfit for work until 27th February 2024, being the date of the Medmark appointment.  He contended that he had never requested a Medmark appointment as he had arranged to attend his own GP with whom he was more comfortable.  The Employee Relations Associate Manager pointed out that as indicated in the emails to him from the HR Partner, the Sick Leave Policy provides that attendance at occupational health appointments is mandatory.  This is in order to assess an employee’s fitness for work and requirement for any reasonable accommodation.  It is also a condition for payment during sick leave.  In response, the Complainant maintained that he had not been aware of this requirement and preferred to see his own doctor.  He also retorted; “What if I was on my deathbed?  Would you make me attend Medmark then?”  The Employee Relations Associate Manager had responded: “We would assess each case based on its own facts and make a reasonable judgment.”  The hearing ended with confirmation that the summary hearing notes would be furnished to the Complainant and the Employment Assistance Programme continued to be available to him.

The Panel followed up on the various explanations given by the Complainant.  His Team Lead confirmed that the Complainant had received training on the submission of timecards during onboarding, and at no time during his employment had he raised any doubts regarding same.  He disputed that a one-to-one meeting was required as a matter of course prior to amending a timecard.  In any event, he had followed up with the Complainant in relation to each of his lates which he had contended were due to transport limitations.  The Employee Relations Lead also confirmed that there was no such requirement for one-to-one meetings.  On 29th February 2024, the Complainant was provided with a copy of the summary hearing notes and asked to provide an indication of any perceived inaccuracies within 24 hours.  He was also provided with a Word copy of the Disciplinary and Appeals Policy.  On 1st March 2024, the Complainant sent a number of emails to the Employee Relations Associate Manager.  In his first email he stated: “Upon reviewing the hearing notes provided, I must express my dissatisfaction with some aspects of the documentation.  It appears that there are discrepancies or missing information that needs to be addressed.”  In his second email, he stated that he could not access the hearing notes.  The Employee Relations Associate Manager forwarded the notes to him again and asked him to highlight what he believed were factual inaccuracies or missing information.  He also sought justification for his late reporting of sick leave on 22nd February, a late check-in and early check-out on 29th February and a late check-in on 1st March 2024.  The Complainant responded asserting that new minor issues were being introduced into the disciplinary process and questioned the impartiality of the Employee Relations Associate Manager.  He cited an issue with his phone for the late reporting of his absence on 22nd February and issues with public transport and inclement weather conditions for his late check-ins on 29th February and 1st March 2024.

The Disciplinary Panel met to consider the matter.  They took into account the Complainant’s responses during the hearing, his suggested amendments to the summary notes and the documentation he had referenced and subsequently emailed to the Employee Relations Associate Manager.  Having considered everything, a decision was made to terminate the Complainant’s employment for misconduct with notice.  This decision was communicated to the Complainant in an outcome meeting on 5th March 2024 where the Employee Relations Associate Manager and HR Representative explained their decision.  A detailed letter was also sent to the Complainant on 6th March 2024 setting out their reasoning and rejecting the various reasons put forward by the Complainant for the undisputed breaches of the various policies as follows:

“• On 14 February your Team Lead (TL) sent you an email stating that you had missed thedeadline for the submission of your timecard breaching the Time and Expense Reporting Policy (Appendix 1).  Your TL highlighted that this was a persistent issue referencing a similar incident on 11 January.  You did not respond to this email.  The justification you presented during the Hearing for this breach of policy was due to a lack of communication, being on a tight schedule and not being trained on how to submit your timecard.  Upon follow up with your TL (Appendix 2), they confirmed that you were provided with training on how to submit your timecard upon onboarding and highlighted that you have never reached out expressing concerns or requested assistance with your timecard.  I note that you have been with the Company for over two years. It is evident from the email on 14 February that your TL reminded all of Team to complete their timecards on 12 & 13 February.

• On 15 February your TL sent you an email highlighting a serious concern regarding unauthorised removal of unpaid leave for late check ins on your timecard (Appendix 1). Your TL had amended your timecard to reflect your lateness and submitted it at 13:18 on 15 February. You removed the unpaid leave and resubmitted the timecard.  The justification you presented during the Hearing for this unauthorised removal of unpaid leave, was that a 1:1 was not held to clarify your unpaid absences before the timecard was submitted.  In addition, you believed that you must have submitted the timecard at the same time as your TL.  Upon follow up with your TL (Appendix 2), they confirmed that it is not custom and practice to conduct a 1:1 when amending a timecard.  Your TL highlighted that each late check in was addressed with you and a reason for lateness requested.  It is apparent from the system that you removed your TL’s amendments and resubmitted the timecard at 15:27, over 2 hours after your TL submitted the timecard on your behalf.
• On 16 February I sent you an email scheduling a disciplinary hearing for 19 February. You responded on 19 February stating that ‘Unfortunately, this time slot is inconvenient for me’. Due to this I rescheduled the hearing for 20 February. You responded to this stating that ‘Unfortunately, I will not be able to attend the upcoming meeting until after the 25th of May’ (Appendix 3).  You expressed this again in an email on 21 February.  The justification you presented during the Hearing for this was that you believed you would be fit to engage in the process after 25 May.  You stated that just because you were fit to work, it did not mean you were fit to engage in the disciplinary process.  You disagreed with my statement that, if an employee is fit to work, an employer would deduce that they are fit to engage in the disciplinary process.  You stated that the date of 25 May was not related to the active Final Written Warning on file until 17 May.

• In an email dated 19 February your HR Partner informed you they were scheduling an occupational health assessment with Medmark (Appendix 4). They also reminded you of the Sick Leave Policy provisions regarding mandatory attendance at scheduled occupational health appointments, the notification procedure, and medical certificates. On 21 February your HR Partner sent you an email highlighting that you had not submitted a medical certificate on the third day of absence, breaching the Policy.  In addition, they provided you with the details of your Medmark appointment, which was scheduled for 27 February at 14:00.  They followed up with another email on 22 February with the same.  On the morning of the 27 February, you sent an email to your HR Partner stating ‘I will be moving forward with my doctor.’  Your HR Partner responded reminding you that attendance at this appointment was a requirement and failure to attend would be a further breach of Policy (Appendix 4).  You failed to attend this appointment and as such Accenture were liable to pay for the appointment.  The justification you presented during the Hearing for your failure to attend the Medmark appointment was that you were on sick leave and that you never requested the Medmark appointment.  The purpose and details of this appointment were clearly outlined to you in multiple emails (Appendix 4).
• The Panel were notified subsequent to the Hearing that you called in sick on 22 February, 2 hours 39 minutes after the commencement of your scheduled shift, breaching the notification procedure of the Sick Leave Policy. As this matter is related to the initial purpose of the Hearing, it has also been taken into consideration. You provided a justification for this breach via email on 1 March claiming that due to a shortage with your phone, you were unable to inform the workplace in advance of your shift (Appendix 5).
• Subsequent to the Hearing, summary hearing notes were sent to you via email on 29 February at 12:43, with a 24-hour timeframe to highlight any factual inaccuracies or vital pieces of information missing. You responded on 1 March at 12:28, expressing your dissatisfaction with aspects of the summary notes, claiming that there were discrepancies and missing pieces of information that needed to be addressed, without providing any detail (Appendix 6). Subsequently at 12:43 you sent me another email stating that you could not access the summary hearing notes document (Appendix 7).”

The letter further confirmed his dismissal on the basis that: “The aforementioned violations of policy deviate significantly from the anticipated behaviour of an employee who has an active Final Written Warning, resulting in a serious breach of trust and confidence.  The Panel contends that there appears to be a deliberate effort to prolong and obscure the procedural course.  Following careful consideration, the Panel has concluded that you have breached the Time and Expense Reporting Policy, Sick Leave Policy and the Disciplinary & Appeal Policy.  Taking into consideration the active Final Written Warning on file, it has been decided that you should be Dismissed with notice and hence your employment will end today.”  It further confirmed that he was to be paid eight weeks in lieu of notice.  The Complainant was advised of his right to appeal and provided with details of same along with a Word copy of the Disciplinary and Appeals Policy.  Finally, the Employee Relations Lead confirmed that the final payment to the Complainant was correct.

Evidence of the Global Operations Senior Manager who conducted the Complainant’s Appeal

The Global Operations Senior Manager outlined her appointment as Chair of the Appeal Panel along with a HR Representative on foot of the Complainant’s appeal against his dismissal by email of 8th March 2024.  She confirmed her independence having had no prior dealings with the Complainant.  He had contended that the only reason for his dismissal was the late submission of his timecard which could be explained by work pressure on the day and lack of training.  He also maintained that he had raised issues of bullying, discrimination and harassment by a Senior Team Lead with HR which had gone unaddressed.  A remote appeal hearing was convened on 25th March 2024.  At the outset, the Complainant stated that as he no longer had access to his email account, he could not access the Disciplinary and Appeals Policy.  The Global Operations Senior Manager offered to adjourn the hearing, but the Complainant confirmed that he was happy to proceed on the basis that a copy would be provided afterwards.  The hearing proceeded and the Global Operations Senior Manager explained that the purpose of the hearing was to review his grounds of appeal, listen to and consider anything that he wished to raise and following adjournment and discussion, decide whether the original sanction was appropriate or should be varied.  The Complainant was then asked to outline his grounds of appeal and advised that he could take as much time as he required.  He accepted that he had attended at the New Joiner’s Orientation training but maintained that he had never received training as to how to submit a timecard and the Respondent had failed to provide him with evidence that he had attended such training.  The Global Operations Senior Manager pointed out that he had accepted that he had attended the New Joiner’s Orientation training which included training on the submission of timecards.  She also referred to documentary confirmation of his attendance as well as his email to the organisers that he had enjoyed the training.  He disputed this even though it came from his email address.  The Complainant then stated that on the day that his timecard was due for submission, he had received a phone call informing him that his grandmother had died.  He contended that he was being penalised by the Respondent over the death of a loved one.  The Appeal Panel commiserated with him on his bereavement.  When asked whether the Respondent had ever been made aware of his bereavement until now, he contended that he had not gone to HR as he was afraid of discrimination and a previous issue raised had gone unacknowledged.  He accepted that he had not told anyone except for his friends and as a consequence, neither his Team Lead, HR or the Disciplinary Panel had been aware of his bereavement.  The Global Operations Senior Manager then returned to the timecard issue and pointed out that it had been some time since the Complainant had completed the New Joiner Orientation training and that the submission of timecards was a repetitive process that was performed by all staff twice monthly.  She questioned why he had never raised any issue in respect of lack of training before.  He replied that it could be difficult to update the timecard and he had previously sought help from his Team Lead and colleagues. 

The Complainant’s contention that he would not be in a position to attend a disciplinary hearing until after 25th May 2024 was then discussed.  He contended that the Disciplinary Panel had “disregarded” his “wellbeing and rights” and scheduled a hearing for the next day whilst “forcibly threatening” him that failure to attend may result in proceedings taking place in his absence.  He further contended that the failure to submit his timecard in a timely manner did not constitute gross misconduct.  It was pointed out to him that as set out in the letter of dismissal, his position had been terminated as a consequence of an accumulation of issues.  Following the conclusion of the hearing, the HR Representative followed up with an email containing the full text of the Disciplinary and Appeals Policy and enquiring whether the Complainant required any further documentation.  The Complainant was also furnished with summary notes of the hearing and had reverted with detailed amendments.  The Panel considered each of the Complainant’s grounds of appeal and his representations made during the course of the appeal hearing.  Having taken all of these matters into account, a decision was made to uphold the Disciplinary Panel’s decision to dismiss the Complainant.  By letter dated 3rd April 2024, the Respondent wrote to the Complainant informing him of the decision to uphold his dismissal and the reasons for same as follows:

“Ground 1:  You failed to adhere to the deadline for timecards submission on February 14th because in the morning of that day you received news that your grandmother passed away.  Also, you mentioned that you never received training on how to submit Time and Expenses reports.

Response 1:  In relation to the first point, your focus that day being disturbed by the news about your grandmother passing; you never mentioned this information to your team leader, HR or any other senior support function within the team on the day itself, nor during the disciplinary hearing when this topic was discussed.  This is essential context and had you mentioned this on the day, your line manager could have taken this into account.  In relation to the training on submitting Time and Expenses reports; according to the documentation received as part of the Appeal process, you were provided with training on how to submit your timecards during the New Joiner Orientation Training, which you attended on the 27th of October 2021.  Also, since you have been with Accenture 2.5 years, you have submitted time reports previously and have never brought up issues before.

Ground 2:  You could not proceed with the hearing on the 28th of February 2024 because you were not in the right state of mind to attend a disciplinary hearing.

Response 2:  By attending work, you are presenting yourself as fit to work, and therefore have to engage in any work-related activities.  Additionally, you were not signed off as ‘not fit for work’ by your own GP, nor did you attend the Medmark appointment that had been scheduled for you.

In conclusion the outcome of the disciplinary appeal process is that the original disciplinary outcome and dismissal is upheld.

In accordance with the company’s Disciplinary Policy, this decision is final and binding on all parties.  You therefore have no further right of appeal.”

On 15th April 2024, the Complainant emailed the Respondent setting out his concerns about the manner in which the disciplinary process had been conducted.  He maintained that the “sole” issue was the late submission of his timecard owing to receipt of the news of the passing of his grandmother and “Despite my explanation of the circumstances surrounding my late submission and my plea for understanding due to my bereavement, I was dismissed from my position.”  The Managing Director of Global Employee Relations replied by email of 22nd April 2024, stating that having reviewed the matter thoroughly, she had asked the HR Lead in Ireland to respond to him directly.  On the same date, the HR Lead in Ireland sent a detailed reply to the Complainant.  She acknowledged his email of 15th April 2024 and expressed condolences with him in relation to his bereavement.  She stated that having reviewed the matter it was clear that the bereavement had not been brought to the Respondent’s attention until the appeal hearing.  She pointed out that there was comprehensive leave and support available to those who are going through a bereavement which would have been available to him had he brought this to the attention of the Respondent.  She stated that having reviewed the dismissal letter, it was apparent that his dismissal was not solely related to the late submission of timecards as contended, and was also due to the unauthorised removal of unpaid leave for late check-ins on his timecard as well as for breaches of the Sick Leave Policy.  The Complainant replied by email of the same date expressing his dissatisfaction with this response.  The HR Lead replied acknowledging his response and advising that the Employment Assistance Programme was still available to him.  The Complainant referred this complaint to the WRC on 5th June 2024.

Cross-examination of Both Witnesses and Covert Recording

Rather than ask questions of the witnesses, the Complainant reiterated his position as contended for during the disciplinary process and referred to ancillary issues not relevant to this complaint.  He contended that he had proof that the minutes of the various hearings were incorrect.  He then disclosed that he had been covertly recording the various hearings on his mobile phone without requesting the permission of the other persons present which he maintained was to protect himself.  He was unable to identify any material discrepancies between the minutes and his covert recordings.  In response, the Global Operations Senior Manager confirmed that the Respondent had been unaware of this and unauthorised recording of such hearings was not permitted under the Disciplinary and Appeals Policy.  Counsel confirmed that the covert recording was a matter for another forum and sought a written undertaking that same had been deleted.

Submissions on behalf of the Respondent

The relevant provisions of Section 6 of the Unfair Dismissals Acts 1977-2015 were set out.  On behalf of the Respondent, it was accepted that the dismissal of an employee shall be deemed to be an unfair dismissal “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  The Respondent relied upon Section 6(4)(b) as its basis for dismissing the Complainant.  This provides that dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from “the conduct of the employee.”  It was acknowledged that the employer bears the burden of proof under Section 6(6) which provides that in determining whether the dismissal was an unfair dismissal or not, it shall be for the employer to show that the dismissal of the employee resulted wholly or mainly from one or more of the matters specified in Section 6(4) or other substantial reason. 

It was further submitted that the decision to terminate the Complainant’s employment was within the band of reasonable responses open to the Respondent and was both substantively and procedurally fair.  The “band of reasonable responses” test was set out by Noonan J. in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated that the role of the decision maker is to decide whether the decision of the employer to dismiss the employee was reasonable having considered all of the circumstances of the complaint.  As highlighted in Redmond on Dismissal Law: “a dismissal may be deemed within the band of reasonableness where it can be shown that a reasonable employer would regard the circumstances as a sufficient reason for dismissing.  An employer does not have to show that no reasonable employer would have dismissed.”  In Looney & Co. Ltd -v- Looney UD 384/1984, the EAT stated: “It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”  In Fitter Welder -v- Engineering Company ADJ-00019181, the WRC relied on Looney in reaching its conclusion that the complainant had been fairly dismissed.  In that case,  the complainant was dismissed for gross misconduct in circumstances where he had taken sick leave, citing a back injury, and had travelled to Portugal on holidays.  He had spoken to the company’s HR representative on the phone whilst on holidays and had not informed her that he was abroad.  He had failed to answer his phone to arrange an appointment to attend the company doctor and further failed to attend an appointment made for him.  In determining that the dismissal was fair, the WRC found that the sanction imposed was within the range of reasonable responses open to the employer and that substantial grounds existed to justify his dismissal. 

In his complaint form, the Complainant appears to take issue with the fact that during his employment he was subject to various disciplinary processes.  This complaint is entirely without merit.  An employer is entitled to ensure compliance with its policies and the mere fact of previous disciplinary matters predating the disciplinary process giving rise to his dismissal on 6th March 2024 does not render it unfair.  The Respondent was entitled to take into account the fact that the Complainant was subject to a final written warning at the material time.  In his complaint form, the Complainant states that during the appeal hearing on 25th March 2024, the Panel (i) failed to provide proof that he had attended training in respect of the submission of timecards, (ii) he did not have access to policies and documentation and (iii) the Panel failed to update the summary hearing notes accurately.  As appears from the foregoing, (i) the Complainant was provided with documentary evidence establishing that not only did he attend the training, he had emailed the organisers to thank them for same; (ii) the Complainant indicated that he was happy to proceed and receive the policies at a later stage and (iii) he was provided with an opportunity to suggest amendments to the summary hearing notes which were either incorporated or if not accepted by the Respondent, were noted in the comment section of the document.  There is no merit to any of the Complainant’s contentions.  Accordingly, the Respondent was wholly justified in its decision to dismiss the Complainant and its decision was well within the band of reasonable responses open to it, having regard to all the circumstances. 

Furthermore, it was submitted that the disciplinary procedure conducted by the Respondent in respect of the Complainant fully complied with fair procedures and natural justice.  In relation to the process itself, the Respondent set outS.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides for the best practice in relation to the provision and operation of disciplinary procedures.  Reliance was also placed upon the dicta of Mummery L.J. in Foley -v- Post Office (2000) ICR 1283: “This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an oral appeal against, the merits of the employers’ decision to dismiss.  The employer, not the Tribunal, is the proper person to conduct the investigation in the alleged misconduct.  The function of the Tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in light of the results of that investigation, is a reasonable response”.  The Respondent has its own established Disciplinary Procedure which complies with the Code.  The Complainant was afforded a comprehensive and thorough step by step disciplinary process.  The Complainant was given advance notice of the disciplinary and appeal hearings.  The Complainant was advised in detail of what was happening throughout the process and provided with full details of all allegations against him.  The Complainant was given the opportunity to be accompanied at each hearing.  He was afforded ample opportunity to respond to questions and to defend his actions.  However he failed to provide any reasonable explanations for his actions.  He was explicitly warned of, and aware of, the potential consequences of the disciplinary process.  Following each stage of the disciplinary process, the Complainant was provided with a copy of the minutes of the hearings.  The Complainant was afforded a thorough appeal process following the disciplinary outcome.  The Respondent also sought to assist the Complainant in relation to his mental health issues by making a Medmark appointment for him and inviting him to avail of the Employee Assistance Programme.  The fact that the Respondent had previously overturned a decision to dismiss the Complainant is indicative of a reasonable employer without any personal agenda or motivation against him.  Therefore, in all the circumstances, the Complainant’s dismissal was also fair.

Without prejudice to the aforesaid, it was submitted that reinstatement would not be an appropriate remedy in the event of the Complainant being successful in this complaint having regard to the seriousness of his conduct and the consequent breakdown of the employment relationship.  In this respect, reliance was placed on the Supreme Court Judgement in Bord Banistíochta, Gaelscoil Moshíológ -v- The Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38, which provided that reengagement and reinstatement should only be granted as a remedy in exceptional circumstances.  

In oral submissions made on behalf of the Respondent at the hearing and in post-hearing submissions, it was further submitted that the Complainant had not adequately mitigated his losses in accordance with Sheehan -v- Continental Administration Co Ltd (UD 858/1999).  In particular, it was submitted that he had not provided adequate proof of the numerous job applications he purported to have made since dismissal.

Summary of Complainant’s Case:

The Complainant complained that he had been unfairly dismissed by the Respondent on 20th April 2023 before being overturned on appeal and dismissed again on 6th March 2024.  He contended that his dismissal was both substantially and procedurally unfair.  At the hearing he gave evidence reiterating the contents of his complaint form.  In particular, he contended that his dismissal was substantially unfair because (1) he had been placed on a Performance Improvement Plan (PIP) which was always being deferred without conclusion; (2) he had been disciplined for asking a colleague to change his log-in status when this had been an issue that affected many colleagues due to inadequate training; (3) he was dismissed for sending duplicated emails which was likely to be a system issue and no evidence was provided to prove this had been deliberate; (4) throughout his employment, he experienced a lack of training and support including with the submission of timecards and the Respondent had failed to provide proof of such training; (5) the Respondent had failed to consider his mental health condition owing to a recent bereavement which he had learned of the same day he had submitted his timecard late; (6) he was subjected to discriminatory treatment and harassment by a Senior Team Lead on the grounds of race and religion and (7) he contended that he had been subjected to a series of unjust disciplinary actions.  He further contended that the disciplinary process was procedurally unfair on three grounds being (1) that it had not been postponed until 25th May 2024 owing to his mental health condition following the passing of his grandmother and was forced on; (2) he had not been refurnished with the Disciplinary and Appeals Policy before his appeal hearing and had been unable to access links to the company policies sent by HR and (3) the Respondent refused to make his requested amendments to the minutes of the hearings.  He had also been subjected to a toxic working environment and when he had raised multiple issues with HR, his concerns were completely disregarded.  Finally, he claimed that he had not been paid the full amount due upon the termination of his employment although he had not referred any complaint regarding same.

The Complainant contends that this dismissal has adversely affected his mental health.  By way of remedy, he sought re-engagement to a different role on a higher salary and/or compensation for his loss of earnings to date.  In terms of mitigation, despite extensive efforts, he has been unable to find alternative employment.  He has been living off his savings.  He provided one example of making it through the first stage of the interview process for a named company.  He contended that he had applied for numerous other positions and following a pause in the hearing, provided the names of four other companies. 

This Adjudication Officer was quite clear that post-hearing submissions would not be permitted and allowed the Complainant an opportunity to access his email to confirm the details of his job applications.  The reason given for this was that the Respondent would be denied an opportunity to test the veracity of such information if submitted post-hearing following the conclusion of the hearing of this complaint.

The Complainant made a number of unsolicited post-hearing submissions and provided further vouching in relation to his efforts to mitigate his losses and secure alternative employment.  Solicitors on behalf of the Respondent responded indicating their concerns as to the adherence to fair procedures.  The additional submissions were fully considered and have no material bearing on this case.  One of the issues raised was that personnel involved in the disciplinary process had not attended at the hearing.  For the record, I am satisfied that their evidence was unnecessary to address any of the issues material to these complaints. 

Cross-examination of the Complainant

The Complainant did not dispute that he had received induction training upon the commencement of his employment.  However, he maintained that he could not remember the presentation on the completion and submission of time reports / timecards as produced at the hearing.  It was put to him that he had received this presentation.  He contended that it may not have been “the full training” and the Respondent had not provided sufficient proof that he had undergone such training.  He also disputed providing feedback to the effect that he had enjoyed the training.  When pressed on this issue given that the feedback had emanated from his email address, he said he did not remember sending that feedback.  Notwithstanding three prior disciplinary processes, he said he could not recall having access to and or receipt of the Disciplinary and Appeals Policy prior to the disciplinary process subject to this dismissal.  However, he accepted that he had access to the Respondent’s policies via the internal intranet whilst still in employment.  He could not recall whether he could access the links to the policies as at the date of his disciplinary hearing.  He recalled receipt of the Word version of the Disciplinary and Appeals Policy on 29th February 2024 and again on 25th March 2024 as confirmed by emails to him opened at the hearing.

The Complainant did not put in issue the fact that on 14th February 2024, he had accessed his timecard and altered it using the requisite codes such that 12 hours of unpaid leave appeared as time worked before resubmitting.  He asserted that this was a mistake but did not elaborate on how this mistake occurred.  The Complainant maintained that he had submitted the timecard at the same time as his Team Lead owing to a lack of communication.  It was put to him that the Team Lead had emailed him beforehand confirming that he had completed the timecard on his behalf.  The Complainant replied that he may not have seen that email.  It was put to him that when he accessed his timecard a minute later and added the 12 hours not worked, he had no difficulty with submission.  It was also put to him that he during his 2.5 year period of employment, he would have submitted at least 56 timecards beforehand.  The Complainant responded that new changes had been made to the procedure.  He now refuted that he had submitted his sick certificates late.  He accepted that he had not attended for the Medmark appointment made for him by the Respondent but maintained his position that he had been entitled to opt to attend his own GP instead.  The Complainant accepted that he had not mentioned his grandmother’s passing in his appeal notice or to management previously and had first brought this up during the appeal hearing.  When pressed, he could not recall the date that his grandmother had passed away and thought that it was two days before he had received the news.  He said he had been going through a lot at the time and whilst fit for work he was not fit for a disciplinary hearing.  He confirmed that he had attended his GP but had not mentioned the disciplinary process.  Accordingly, his GP had not certified him as being unfit for the disciplinary process.

Findings and Conclusions:

I am required to determine whether the Complainant’s dismissal was unfair in accordance with Section 6 of the Unfair Dismissals Acts 1977-2015 which provides the legal framework.  Section 6(1) provides: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  Section 6(4) lists the grounds where dismissal of an employee shall not be deemed to be unfair including (b) dismissal wholly or mainly arising from the conduct of the employee.  Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for the Adjudication Officer to have regard for “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in Section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of Section 7(2) of this Act.”  It is also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures within a disciplinary process. [Re: Haughey (1971) IR 217 & S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures)].  It is therefore necessary to consider whether an employee’s dismissal is both substantively and procedurally fair.  As these are often interrelated they should properly be considered together as observed in Iceland Frozen Foods -v- Jones (1983) 1 ICR.

In JVC Europe Ltd -v- Panisi [2011] IEHC 279 (para 14), the High Court aptly summarised these provisions: “The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify dismissal.”  Having set out Section 6 of the Acts in Bank of Ireland -v- Reilly (2015) IEHC 241, Noonan J. held that “the question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”  Thus, the role of the Adjudication Officer is not to conduct a further factual investigation and substitute their own judgment for that of the employer but rather to objectively assess whether the decision to dismiss the employee was reasonable for that particular employer in all the circumstances.

Where a dismissal for misconduct is in issue, in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137, the High Court provided a useful list of ‘premises’ which must be established to support an employer’s decision to terminate the employment of an employee for misconduct, which I have applied to the facts as follows:

“1.  The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.”

I am satisfied that the main complaint against the Complainant giving rise to his dismissal arose directly as a consequence of his adjustment of his timecard (as drafted by his Team Lead) to reinstate 12 hours which he had not worked and the resubmission of same for payment on 14th February 2024.  Based upon the fact that the correct reporting of time is critical to the correct billing of clients, along with the Respondent’s reliance upon its employees to correctly declare their time worked, I consider it reasonable for the Respondent to regard this as a serious breach of the Time and Expense Reporting Policy.  The seriousness of this breach was clearly set out in the Team Lead’s email to the Complainant on 15th February 2024 with reference to the relevant provisions of the Policy which also expressly provides that a violation can lead to disciplinary action including dismissal.  The purpose of the disciplinary hearing was also clearly set out in the invitation to the disciplinary hearing and outlined at the outset of the hearing.  My view is further bolstered by the fact that although the Complainant had been subject to a Performance Improvement Plan (PIP) at the time, at no stage did the Respondent seek to introduce this into the disciplinary process.

“2.  Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.”

The complaint/s against the Complainant were clearly set out with reference to the relevant Policies.

“3.  The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.”

The Complainant was afforded a hearing at both disciplinary and appeal stages and his version was noted along with documentation he submitted in support of his position and was contemporaneously available to the Disciplinary and Appeal Panels who conducted the hearings without comment or predetermination. 

“4.  The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.”

I am satisfied that both the Disciplinary and Appeal Panels made findings flowing from their consideration of the factual evidence including consideration of the Complainant’s evidence and explanations for his actions.  As his actions giving rise to his dismissal were not substantially in issue, it was unnecessary for the Panels to make findings of fact but rather to consider the veracity of his explanations justifying his actions.  I am satisfied that the Disciplinary and Appeal Panels reasonably rejected the explanations provided. 

“5.  The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee. 

Put very simply, principles of natural justice must be unequivocally applied.”

I am satisfied that the Respondent’s decision to dismiss the Complainant with notice was proportionate to the gravity of the complaint/s and gravity and effect on him and well within the band of reasonable responses.  He was given advance notice of the consequences of breaching the various policies through repeated warnings.  Throughout the disciplinary process and hearing of this complaint, the Complainant continually sought to make excuses, downplay and minimise his actions and did not exhibit any real remorse or insight into the seriousness of same.  He continually referred to the late submission of his timecard as constituting the “sole” complaint against him.  He was fixated on the Respondent’s alleged poor treatment of him and impact on his mental health.  Of particular note, he omitted to provide any credible explanation for the undisputed fact that he had adjusted his timecard to claim payment for 12 hours which he had not worked.  The Respondent was entitled to reject his contentions that this arose from user error when there was credible evidence that he had received comprehensive induction training on the submission of timecards and this was a routine repetitive process.  It is also reasonable to assume that given that his role entailed information technology, he would have had sufficient knowledge to submit his timecards without issue.  The Respondent was also entitled to reject his contention that there had been a miscommunication with his Team Lead around the submission of his timecard particularly when his lates had already been addressed with him and the Team Lead had emailed him to confirm that he had drafted his timecard on his behalf just one minute beforehand.  The Respondent was further entitled to reject his justification for breaches of the Sick Leave Policy when he had been repeatedly advised of its requirements.  Even without the other breaches including non-compliance with the Sick Leave Policy and efforts to stall the disciplinary process, I am satisfied that that dismissal of the Complainant for the resubmission of his timecard alone would have been within the band of reasonable responses.  It follows that no issue arises with the incorporation of the breaches of the Sick Leave Policy arising during the disciplinary process. 

In my view, the Respondent had exercised considerable forbearance with the Complainant during the short tenure of his employment and had exhausted all alternative available sanctions before resorting to his dismissal.  In particular, the Respondent had overturned an earlier dismissal and afforded him a second chance notwithstanding three separate disciplinaries at that juncture, the fact that he was subject to a PIP and the Respondent was undergoing an extensive redundancy process.  Instead of acknowledging his good fortune and availing of that second chance, the Complainant agitated for an apology and compensation before proceeding to breach a number of company policies in early course.  Given the clearly worded final written warning as set out above, the Complainant could not have been under any illusion that his dismissal was a real possibility in the event of any further disciplinary action during its twelve-month currency.

In terms of fairness of procedures, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have a written disciplinary and grievance procedure which is furnished to employees upon the commencement of their employment and:

“The procedures for dealing with such issues reflecting the varying circumstances of enterprises / organisations, must comply with the general principles of natural justice and fair procedures which include:

• That employee grievances are fairly examined and processed;
• That details of any allegations or complaints are put to the employee concerned;
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.”

I have examined the fairness of the process adopted by the Respondent in the instant case and am satisfied that it complied with all of the best practice requirements as set out in the Code above.  In particular, the Respondent had a comprehensive Disciplinary and Appeals Policy.  I am satisfied that this Policy was furnished to the Complainant on numerous occasions throughout his disciplinary processes and he also had access to same via the intranet.  The Complainant was given the opportunity to have representation throughout the disciplinary process but opted to attend the hearings unaccompanied.  The details of the complaints against the Complainant were clearly put to him in writing and outlined at the hearings and he had an opportunity to respond fully.  The disciplinary hearing only proceeded at a time when he was certified as fit for work.  I am further satisfied that he was afforded a fair and impartial determination of the issues concerned taking into account his representations, explanations and documentation.  There was no predetermination of the issues and the Respondent’s reasons for the decision to dismiss him and uphold that dismissal on appeal were explained to him in outcome meetings before being conveyed in detailed letters.  The Complainant was also afforded an appeal hearing with an independent Panel.  Even after the Respondent had indicated that the appeal was final, HR management engaged with the Complainant’s concerns about the process and offered him ongoing support via the Employment Assistance Scheme. 

I will now turn to consider the particular issues raised by the Complainant with the disciplinary process:

The Complainant’s dismissal was substantially unfair because he had been placed on a Performance improvement Plan (PIP) which was always being deferred without conclusion:  As set out above, I am satisfied that at no stage did the fact that the Complainant was subject to a PIP have any bearing on this disciplinary process as the Respondent did not seek to refer to or rely upon same at any stage.  Additionally, the final written warning relied upon emanated from a different disciplinary issue.

The Complainant had been disciplined for asking a colleague to change his log-in status when this had been an issue that affected many colleagues due to inadequate training:  I am satisfied that this was appropriately acknowledged and addressed by replacing a final written warning with an informal caution.

The Complainant was dismissed for sending duplicated emails which was likely to be a system issue and no evidence was provided to prove this had been deliberate:  Firstly, the sanction of dismissal was in fact replaced with a final written warning on appeal for this disciplinary.  Secondly, the Respondent had investigated whether a system issue could have caused the duplicated emails with the Client and was satisfied that there was no evidence to support this, particularly as only the Complainant was affected.

Throughout his employment, the Complainant experienced a lack of training and support including with the submission of timecards and the Respondent had failed to provide proof of such training being provided:

Based upon the evidence adduced on behalf of the Respondent including the presentation on the completion and submission of timecards, I am satisfied that the Complainant received comprehensive induction training including training on timecards.  I find the Complainant to be incredible in relation to his contentions that he did not receive this training and did not provide feedback to the effect that he had enjoyed the training when a message to that effect from his email address had clearly been recorded.  Additionally, he had completed this repetitive process on a twice monthly basis over the two-and-a-half-year period of his employment without any issue or indicating any difficulty to his Team Lead previously. 

The Respondent had failed to consider the Complainant’s mental health condition owing to a recent bereavement which he had learned of the same day he had submitted the timecard late:

It is noted that the Complainant had referred to his ‘mental health condition’ throughout his employment with the Respondent.  He either cited it as a reason for any shortcoming or accused the Respondent of affecting his mental health.  However, he has never provided any report from his GP or other professional outlining his particular condition.  The Complainant also repeatedly intimated that the Respondent was aware of his grandmother’s passing at the time of his dismissal when in fact that was not the case.  It is common case that the Respondent was first made aware of same at the appeal hearing.  I have considered whether the Appeal Panel should have factored this in before upholding the decision to dismiss.  I am satisfied that whilst such upsetting news might explain the late submission of his timecard, it certainly could not reasonably explain how he came to amend his timecard with 12 hours he had not worked. 

The Complainant was subjected to discriminatory treatment and harassment by a Senior Team Lead on the grounds of race and religion leading to a series of unjust disciplinary actions:

I am satisfied that the main incident alleged against the Senior Team Lead in question arose on 14th April 2023, a year before the Complainant’s dismissal subject to this complaint and related to performance issues.  I am further satisfied that the Respondent could not have reasonably done any more to investigate the matter when the Complainant failed to provide the further information requested on 1st July 2023.

The Complainant had been subjected to a series of unjust disciplinary actions by the Respondent:

I am satisfied that there was ample justification supported by irrefutable evidence to justify the various disciplinary actions taken by the Respondent against the Complainant before the decision to dismiss him.

The disciplinary process should have been postponed until 25th May 2024 owing to his mental health condition following the passing of his grandmother but was instead forced on:  Again, it is misleading to suggest that the Respondent had any knowledge of the apparent passing of the Complainant’s grandmother when he had made this request to postpone the disciplinary process.  It is common case that management did not have any knowledge of same until the appeal hearing on 25th March 2024.  It was quite reasonable for the Respondent to seek to conclude the process in a timely manner and to take a view that the Complainant had nominated this date as it coincided with the expiry of his final written warning.

The Complainant had not been refurnished with the Disciplinary and Appeals Policy before his appeal hearing and had been unable to access links to the company policies sent by HR:  I am satisfied that the Complainant had been furnished with numerous copies of the Disciplinary and Appeals Policy throughout his employment with the Respondent.  Not only did he have access to the Respondent’s policies through the intranet but he was repeatedly furnished with copies and links to same and in particular, received a copy after the disciplinary hearing on 29th February 2024.  Having gone through three disciplinary processes prior to the one subject to this complaint, he could not have been under any illusion as to the procedures.

The Respondent refused to make his requested amendments to the minutes of the hearings:  

The Complainant complained about the accuracy of the minutes of the hearings and appeared to expect a verbatim account when they were clearly intended as a summary.  He was unable to point to any material discrepancies that would have had a bearing on the process.  I am not impressed by his covert recording of the hearings particularly where it was expressly prohibited and his reliance upon same at this hearing. 

Accordingly, I find the Complainant’s dismissal to be both substantively and procedurally fair.

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to the unfair dismissal claim in accordance with the requisite statutory provisions.  Based upon the aforesaid reasoning, I find that that the Respondent has discharged the burden of proving that the Complainant’s dismissal was both substantially and procedurally fair in all of the circumstances and accordingly dismiss this complaint.

CA-00063923-002 – Complaint of Harassment and Discrimination

Preliminary Objection:

The Respondent contended that this complaint had been referred outside of the maximum 12-month time limit for the referral of a complaint to the WRC under Section 77(4) of the Employment Equality Acts 1998-2015.  It was submitted that the Complainant had not identified any acts of discrimination and harassment within that period.  Accordingly, the WRC does not have jurisdiction to hear this complaint.  Detailed written submissions and caselaw were also provided in relation to the substantive complaint contending that the Complainant had not identified a comparator, and had not established a prima facie case of less favourable treatment constituting discrimination or harassment on the grounds of race or religion. 

The Complainant confirmed that he was of Nigerian ethnicity and alleged discrimination and harassment on the grounds of religion and race against a Senior Team Lead, also Nigerian but from a different ethnic group and religion.  He contended that the two complaints herein are intrinsically linked as the discriminatory treatment suffered at the hands of the Senior Team Lead ultimately led to his dismissal.  Specifically, he was subjected to disciplinary action arising from the Senior Team Lead targeting him by allocating him an unrealistic workload, calling him into meetings without notice and general aggression giving rise to his first dismissal on 20th April 2023.  Although this dismissal was overturned on appeal, this led to his ultimate dismissal owing to its replacement with a final written warning instead of allowing him to restart with a clean slate.  When asked to outline specifically what incidents give rise to this complaint, the Complainant referred to an incident whereby he asserted the Senior team Lead spoke to him disrespectfully on 9th March 2023 and the two incidents on 14th April 2023 (one relating to the referral of work which he had apparently allowed to build up by the Senior Team Lead and the other pertaining to a subsequent interaction between them on the same date as referred to above).  He was unable to provide any specific details of more recent incidents.  The date of referral of this complaint to the WRC was 5th June 2024. 

Findings and Conclusions:

In order to determine whether this complaint is statute-barred and hence whether the WRC has jurisdiction of the WRC to investigate same, it is necessary to firstly set out the relevant statutory provisions.  Section 77(5) of the Employment Equality Acts provide as follows for the time limits for referral of complaints:

“(a)  Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b)  On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(c)  This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6)  Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.

(6A)  For the purposes of this section- (a) discrimination or victimisation occurs- (i) if the act constituting it extends over a period, at the end of the period, (ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and (iii) if it arises by virtue of a provision which operates over a period, throughout the period,

(b)  a deliberate omission by a person to do something occurs when the person decides not to do it, and

(c)  a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either- (i)  does an act inconsistent with doing it, or (ii)  the period expires during which the respondent might reasonably have been expected to do it.”

In summary, Section 79(5)(a) of the 1998 Act requires a complaint to be referred to the WRC within 6 months from the date of occurrence of the discrimination or harassment to which the case relates or, as the case may be, the date of its most recent occurrence.  Section 79(5)(b) provides for an extension of time of up to 12 months if reasonable cause is shown.  Section 79(6) provides that where a delay arises owing to an employer’s misrepresentation, time begins to run from the date of the employee becoming aware of that misrepresentation.  No such misrepresentation has been asserted herein.  Section 79(7) defines the timelines as to when an act of discrimination or victimisation arises for the purposes of this Section. 

The Complainant referred this complaint of discrimination and harassment to the WRC on 5th June 2024.  On his own account, the last alleged incident of discrimination and harassment arose on 14th April 2023 over 13 months before the referral of this complaint.  The Complainant has not provided any clear factual basis for linking the alleged discrimination and harassment with his dismissal on 6th March 2024.  I am therefore satisfied that any actions alleged by the Complainant against his Senior Team Lead are so remote in terms of influencing his ultimate dismissal that they could not constitute a continuum of discrimination.  In any event, the Complainant has opted not to pursue a complaint of discriminatory dismissal and I am satisfied that the facts giving rise to his dismissal are covered by his complaint of unfair dismissal above. 

I have also considered the whole factual matrix such that I am satisfied on the balance of probabilities that the Complainant has not identified any continuum of, or acts of discrimination or harassment that might bring him within either the 6-month time limit or 12-month time limit if an extension of time for reasonable cause was granted.  As this complaint has been referred over 13 months after that date, it falls outside of both the 6 month time limit and the 12-month time limit for considering an application to extend time.

Decision:

Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to the complaint.  For the aforesaid reasons, pursuant to Section 79(3A) of the Employment Equality Act 1998, I find that this complaint has been referred to the WRC outside of the 6-month time limit for referral of a complaint and the 12-month time limit for the grant of an extension of time.  Accordingly, this complaint is statute-barred and the WRC does not have jurisdiction to investigate this complaint.  It follows that it is unnecessary to set out the Respondent’s detailed submissions in relation to the substantive complaint.

Dated:   11-08-25

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Sections 6 & 8 of the Dismissal Acts 1977-2015 - dismissal for misconduct deemed fair – Preliminary issue as to time limit – Sections 77 & 79(3A) of the Employment Equality Acts 1998-2015