ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050035

Parties:

Complaint:

Date of Adjudication Hearing:  27/03/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.  The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

Background:

The Complainant contends that she was unfairly dismissed for gross misconduct.

Summary of Respondent’s Case:

The Complainant was dismissed from her employment with the Respondent for gross misconduct, on the grounds of bullying / intimidation / harassment / discrimination, 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. The Respondent refutes any allegation of an unfair dismissal in its entirety. It is the position of the Respondent that the dismissal, which is not in dispute, was fair by reason of Section 6 (4) of the Unfair Dismissal Acts, 1977 – 2015.

Background to the Respondent

The Respondent is a leader in food, facilities, property management and energy services, employs 6,000 people across 980 units in the Republic of Ireland.

The Complainant commenced employment in the role of General Assistant on 29 April 2013 in a Regional Hospital, and through a transfer of undertakings became an employee of the Respondent on 09 June 2014.

The Complainant was promoted to the role of Evening Shift Supervisor in 2016. The Complainant supervised the evening shift of patient feeding, with responsibility for between 20-23 employees each shift. Her duties included checking the trolleys for service, checking the floors/wards/kitchens and taking calls from wards to coordinate with kitchen porter.

Where possible, there is normally two evening supervisors scheduled to a shift. The Complainant was employed on a part time basis working 25 hours per week, over 5 days. The Complainant received a gross hourly rate of €14.85.

The Complainant remained in this role until the termination of her employment, when she was dismissed for gross misconduct on 15 September 2023.

In July 2023, an employee approached Mr S, Site Manager for the Respondent, to make a complaint about the behaviour/conduct of the Complainant, where they felt they had been subjected to bullying, and discrimination. This followed with three other employees coming forward to verbally express their concerns around the behaviour of the Complainant. It was noted that they all stated that they were fearful of the retaliation from the Complainant should she find out that a complaint had been made against her by them.

Mr S listened to all of the concerns and on 19 July 2023, he reached out to Ms O, HR Business Partner to outline the complaints and the seriousness of the allegations, along with highlighting the impact it was having on the team.

On 25 July 2023, a MS Teams call took place with Mr S, Ms O, Mr G, ER Specialist, and Mr P, Regional Support Manager, to discuss the situation and determine the best approach. It was decided that Mr P would attend the site and speak to the employees who had made the allegations and to determine any next steps.

Over the course of the week, Mr P met with the four employees who had made the allegations and asked them for written statements of the facts that they had brought forward in their allegations (Four employee statements supplied). The statements outlined allegations of bullying, intimidation, harassment and discrimination.

On 01 August 2023, the Complainant was suspended with pay pending investigation into the allegations (Letter of suspension supplied). This decision was made due to the serious allegations outlined in the written statements received, and the fear expressed by those who made the allegations that they may face repercussions.

On 10 August 2023, the Complainant was issued an invitation to an investigation meeting scheduled on 15 August, by Mr P, Regional Support Manager, who had been appointed as the Investigation Officer (Invitation letter supplied). Included in this invite was a copy of the disciplinary policy, and the statements from the four employees who lodged the complaint. This invite also outlined the Complainants right to representation, and that the matters under investigation, if upheld, constituted gross misconduct.

At the Complainants request, this meeting was rescheduled to 17 August to allow her more time to prepare.

On 17 August 2023, the investigation meeting took place (Minutes supplied).  A colleague attended in the capacity of representation for the Complainant. During this meeting, the Complainant refuted the allegations made against her.  Some of the statements by those who made the complaints were put to her in the meeting.  These included the Complainant deciding she was going to change one staff member (I’s) name to Tom as she didn’t speak his “lingo”.  Another was a claim of racial abuse on 11 and 18th July 2023 and another was speaking to a staff member insulting them by referring to their ‘fat ass’.  

On 24 August 2023, the Complainant was issued the investigation outcome, where it was outlined that there was a case to answer, and it would move to the disciplinary stage.

On 30 August 2023, the disciplinary hearing took place with Ms T as Disciplinary Officer, Mr COS as note taker, the Complainant and a colleague attending in the capacity of her representation.

On 15 September, the Disciplinary Outcome Meeting took place.  The outcome letter was read out, and the Complainant was informed that given the allegations and having considered the evidence available, that she was to be summarily dismissed with immediate effect.  During this meeting, the Complainant was advised of her right to appeal this decision.

On 20 September 2023, the Complainant appealed this outcome to Mr G, Regional Manager (Appeal Letter provided). The Complainant outlined six grounds for her appeal, which in summary, include:

1. The Complainant denied the allegations and outlined she was never provided an opportunity to challenge the statements, alleging a lack of evidence, and corroboration to support the statements.
2. That Disciplinary Officer Ms T failed to outline what bullying/intimidation/harassment or discrimination that she was guilty of.
3. That no lesser sanction was considered, without prejudice that she denies the allegations occurred in the first instance.
4. The investigation process was flawed, with no witnesses or corroborating evidence produced.
5. The reason for suspension was never outlined to the Complainant, without any consultation.
6. That the investigation officer and disciplinary officer have erred in their decision making. The Complainant also requested that an independent third party hear her appeal.

Following receipt of the letter of appeal, Mr G then appointed Mr D, Regional Manager of a separate division within the Respondent, as the Appeals Officer.

The appeal hearing took place on 03 October 2023. In attendance was Mr D, Ms K (Regional Support Manager) as note taker, the Complainant, and a colleague attending in the capacity of her representation (Minutes supplied). During this meeting Mr D went through the Complainants points of appeal.

On 07 November 2023, Mr D issued the Complainant with the appeal outcome, which upheld the disciplinary sanction of summary dismissal.

Respondent’s Arguments 

The fact of dismissal is not in dispute and the Respondent submits that the Complainant's dismissal was both substantively and procedurally fair:

Section 6(4)(b) of the Unfair Dismissal Acts 1977 – 2015 states: 

(4) Without prejudice to the generality of subsection (1) of this section, the 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 one or more of the following:

….. (b) the conduct of the employee

The Respondents Dignity at Work Policy, (supplied), outlines that bullying and/or harassment is not tolerated, and that they expect employees to treat their work colleagues, as they would always expect to be treated i.e. with dignity and respect.

Further to the above, the Respondent disciplinary policy, clearly outlines the Complainant’s behaviour to be gross misconduct:

• Bullying / intimidation / harassment / discrimination. (Disciplinary Policy)

The Respondent is firmly of the view that the sanction of dismissal is wholly justified given the Complainant’s inappropriate behaviour, the seriousness of the allegations and the fact the Complainant was in a supervisory role. The Respondent requires all staff to treat each other with dignity and respect in the workplace. Further to this, there is an expectation that supervisors do not engage or facilitate any such behaviour.

In the case of Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008 (Appendix 25), the Tribunal sets out quite clearly the requisite remit of the Tribunal and the burden which must be demonstrated by the Respondent in the matter at hand today:

“The Tribunal is not required to determine whether the Complainant did or did not carry out the alleged act […].  The Tribunal’s function is to establish whether the respondent has proven that the dismissal was not unfair, having regard to the terms of the Unfair Dismissals Acts 1997 [sic] to 2001.  For this to be established the Tribunal must be satisfied that the alleged act […] was fully and fairly investigated by the respondent, that the investigation and disciplinary process respects the rights of the Complainant, that the conclusion that the offending act had been perpetrated by the Complainant was reasonable on the balance of probabilities and that the dismissal was a proportionate response within the band of sanctions which could be imposed by a reasonable employer.”

Each of these criteria outlined by the Tribunal was examined in the Respondent’s submission.

Fair procedures were afforded the Complainant and the matters were “fully and fairly investigated” and at all times in the process, the Complainant’s rights were upheld. 

It was “reasonable on the balance of probabilities”, and the evidence available for the Respondent to conclude that the Complainant had carried out an act of gross misconduct in breach of the disciplinary policy.

The dismissal was “a proportionate response within the band of sanctions which could be imposed by a reasonable employer”.  Any reasonable employer could not be expected to continue to trust a senior employee, who behaved like this, when several members of her team felt intimidated by her actions. continue to trust a senior employee, who behaved like this, when several members of her team felt intimidated by her actions.

The disciplinary manager, nor the appeal manager were convinced that the Complainant would not engage in the same behaviour again, and as such no lesser sanction would have been appropriate.

The Respondent did consider alternatives such as a lesser sanction such as a final written warning or redeployment, but given the seriousness of the allegation it was deemed inappropriate to bring the Complainant back into the workplace. It is the Respondent’s position that any lesser sanction would not be appropriate for such behaviour as severe as hers.  

Notwithstanding and without prejudice to the Respondent’s position that the dismissal was fair in all the circumstances, should the Adjudication Officer find that the dismissal was unfair, it is imperative that the actions and conduction of the Complainant are taken in account when considering what is the appropriate remedy, where the employment relationship has broken down and has been irretrievably damaged.

In conclusion, in relation to the Unfair Dismissal Act 1977-2015, the decision to dismiss the Complainant was taken based on a full and fair investigation and after full consideration of the evidence in totality.  The Complainant was afforded every opportunity to respond to allegations. All principles of natural justice and fair procedures were afforded to the Complainant including.  

• The Complainant was notified in writing of the allegation against her.  
• She was afforded a full and fair opportunity to consider and respond to these allegations.
• She was provided with all evidence against her including the investigation report.
• She was provided with copies of evidence and was given opportunities to have her case heard.  
• The Complainant availed of her right to representation at all stages.
• She availed of the opportunity to appeal the decision.

The full and fair investigation found that the Complainant had carried out acts of gross misconduct in breach of the Respondents disciplinary policy. The Respondent believes that the decision reached is appropriate and proportionate in the circumstances and that any other reasonable employer would have reached the same conclusion.   

Evidence on affirmation was given by Site Manager Mr S, who confirmed that he was approached by staff to make a complaint about the behaviour/conduct of the Complainant, where they felt they had been subjected to bullying, and discrimination. Subsequent to Mr S reporting to HR, Regional Support Manager Mr P came to the hospital and interviewed the staff.  Mr S gave the Complainant the letter suspending her from duty pending the investigation and disciplinary process.  On cross examination, he denied being aggressive with the Complainant.

Evidence on affirmation was given by Regional Support Manager at the time, Mr P.  He stated that he met with the staff who made complaints about the behaviour of the Complainant.  He met with the Complainant who denied all allegations against her.  She simply said “no that never happened”.

Evidence was given on affirmation by Disciplinary Officer Ms T.  She confirmed she gave the Complainant the right to be represented.  She found that there were 4 individual statements of complaint by staff against the Complainant who was their Supervisor.  She found that there was no collusion between the staff, each statement was different, and she found them to be genuine.  There were no mitigating factors and it was concluded that the only outcome was dismissal for gross misconduct.

Summary of Complainant’s Case:

The Complainant gave evidence in which she categorically denied ever having made the remarks the individual staff members alleged she made.  She alleged that the Site Manager Mr S was very aggressive towards her when she alleged, he “marched” her up to the office, took her name badge from her and said “Can you read” when he gave her the suspension letter.  She did not have a clue what it was all about.  She believed it was a set up by the Site Manager and she denied strongly that she was racist.  

Findings and Conclusions:

Section 6 of the Act provides:

6 (4) Without prejudice to the generality of subsection (1) of this section, the 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 one or more of the following:

….

(b) the conduct of the employee..

In this case the Complainant was dismissed for gross misconduct following complaints made against her for racial discrimination, bullying and harassment.  

In deciding if the dismissal was unfair, it is not for me to establish the guilt or innocence of the Complainant but rather consider whether the Respondent acted reasonably in the matter of the dismissal.  The tests to be applied are contained in case law.

The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that

“It is not for the Tribunal 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 the investigation, or concluded as he did..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 would have done in the same position..”

In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing.  The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated:

“The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

In this instant case, I base my findings and conclusions on three key questions

(1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation?

(2) Was there a fair investigation? and

(3) was the penalty proportionate? 

I note the Respondent received 4 separate complaints from staff about the conduct and behaviour of the Complainant in her dealings with staff under her supervision.   A full investigation was undertaken and the disciplinary process followed where she was given the right of reply, the right to representation and the right to appeal.   I note the Complainant’s denial of the allegations at all stages and her belief that she was ‘set up’ by certain persons.  I find that the Respondent came to credible and reasonable conclusions in the disciplinary process.  I find that had the Complainant accepted or shown some acknowledgement or remorse in relation to the situations outlined, the penalty may have been less harsh.  The dismissal of the Complainant indicates that racial abuse and bullying in the workplace will not be tolerated by any reasonable employer and in this instant case the Respondent has discharged the burden of proof that the dismissal was fair in the circumstances.

I find the Complainant was not unfairly dismissed and complaint is not well founded.

Decision:

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

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Based on the reasons and findings above, I have decided that the complaint of unfair dismissal is not well founded.

Dated:   27/05/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: