UDD2516

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045608 (CA-00056379-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 3 September 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 2 April 2025.

The following is the Decision of the Court.

DECISION:

1Background to the Appeal

This is an appeal by Mr Divakaran (the Complainant) against Adjudication Officer’s Decision ADJ-00045608 CA-00056379-001 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim against his previous employer HSE (the Respondent) that he was unfairly dismissed. The Adjudication Officer held that his complaint failed.

The complaint was lodged with the WRC on 28 April 2023, appealed to the Labour Court 3 September 2024 and a hearing was held on 2 April 2025. The Complainant commenced employment with the Respondent in September 2007 as a senior pediatric physiotherapist and was dismissed on 27 November 2022. The fact of dismissal is not in dispute.

2 Summary of Respondents submission

Ms Guinness BL, on behalf of the Respondent submitted that two complaints were made in December 2019 alleging serious inappropriate behaviour by the Complainant. The complaints were lodged under the HSE Dignity at Work Policy and were dealt with in line with the informal stage of the policy as requested by the staff at the time. The essence of the complaints are as follows:

Frequent, inappropriate and unwanted personal comments regarding appearance and clothing.

Unwanted and uninvited frequent calls to their offices.

Offered to check ‘tone’ of one of the staff in their office.

Unwanted physical touch on numerous occasions hugs, attempted kisses, kisses to the head, placed hand on buttock of one member of staff.

Questions of a sexual nature posed during regular conversation.

Unwanted invitations to lunch

Comments on activities of staff members throughout the day- giving rise to the feeling of being watched

Arising from the informal process a safety plan was drawn up that detailed the behaviours that needed to change. The Complainant accepted this safety plan. As part of the safety plan, it was agreed that the Complainant’s line manager would be informed that the inappropriate behaviour had been outlined to him, and it was clarified how he was expected behave from that point onwards. The Complainant had indicated that he understood the impact of the behaviour on his work colleagues and that he had committed to change his behaviour.

The safety plan also provided that at any stage the parties who had made the complaint could decide to request a formal investigation. The safety plan was adhered to for a period in 2020 but on the 17 December 2020 a further complaint was made against the Complainant. Following this the safety plan was updated on 22 January 2021, appropriate behaviours were reiterated, and the following were added, where reasonably possible avoid walking on the middle corridor and psychology office corridor. Check/reset keypad door to corridor PT/OT to avoid unnecessary walking near psychology offices. Avoid parking his car in the following areas of the building thus ensuring his car is not near psychology staff cars.

By email of 28 January 2021, one of the two people who had lodged the original complaints lodged a formal complaint against the Complainant. That complaint stated that the safety plan had been observed for a period of time however on 17/12/2020 it was reported that over a period of a few weeks he had begun parking his car beside AH’s car, who was the other person who had made the complaint.

In line with the procedure a preliminary screening was carried out which found that the alleged behaviour fell within the definition of bullying, harassment or sexual harassment. The outcome of the preliminary screening was sent to the Complainant and to MMcC. It was established that MMcC did not want mediation but wanted to proceed with a formal investigation. Terms of reference were established, and Ms C Crowley was appointed to carry out the investigation. MMcC along with five witnesses and the Complainant were interviewed.

The investigator found on the balance of probability that the complaints/allegations as detailed had been found to have occurred. By letter dated 14 September 2022, the Complainant was informed that the Respondent intended to initiate the disciplinary proceedings in line with the HSE disciplinary policy. A copy of the policy and the final investigation report dated 4 August 2022 was provided and the letter confirmed that the action was taken following an investigation into allegations of sexual harassment which had been made against him and set out the timeframe and details of the allegations. The letter confirmed his entitlement to be accompanied, that the disciplinary hearing was taking place under stage four of the procedure, and that the outcome could result in termination of employment. The Disciplinary hearing took place on 10 October 2022 and the Complainant was accompanied by his Trade Union Official. By letter dated 14 October 2022 the Complainant was advised of the decision to dismiss and of his right to appeal. On 18 October 2022 the Complainant’s representative raised an issue about AH being in separate process and clarification was provided. The Complainant did not appeal the decision to dismiss.

Ms Guinness BL submitted that in Bank of Ireland v Reilly 2015 IEHC 241 Noonan J stated that

 “the onus is on the employer to establish that there are substantial grounds justifying the dismissal and that have resulted wholly or mainly from one of the matters specified in Section 6 (40 which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6 (7) makes clear that the Court may have regard to the reasonableness of the employer’s conduct in relation to dismissal. That is however not to say that the Court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses”.

Further cases were opened to the Court addressing the interaction between the “band of reasonable responses” and procedural issues, Iceland Frozen Foods v Jones 1983 1 ICR 17 and J Sainsbury PLC v Hitt 2003 ICR 111, where the Court held that “the range of reasonable responses test applied not only to the question of whether or not the suspected misconduct may have taken place but also the reasonableness of the decision to dismiss and to the reasonableness of the investigation.”

Ms Guinness BL in closing stated that from the evidence that has emerged there were serious allegations against the Complainant, and he accepted some but not all the allegations. The Complainant understood that the complaints could be moved into the formal process even though he had had agreed a safety plan and that the formal process could lead to dismissal. No issues were ever raised about the process followed by the Respondent.

In this case the Respondent conducted an investigation, disciplinary hearing and offered an appeal process which the Complainant chose not to avail of. The Complainant was not unfairly dismissed. He was dismissed for gross misconduct and failed to appeal that decision.

3 Witnesses for the Respondent

The first witness for the Respondent was Ms Finucane who informed the Court that she was Acting Head of Service for HR in the HSE Southeast region, and she took up her position in August 2024. She was not involved in the process involving the Complainant. Ms Finucane explained the Respondent’s Dignity at Work Policy and what is involved in the informal stage of same. It was her evidence that it is a normal feature of a safety plan that the person who made the complaint retains the right to proceed with a formal complaint if they wish. Safety plans by their nature are not normally timebound they are linked to changes to behaviours. It was her understanding that in the case to hand the safety plan was still in place at the time of dismissal.

Under cross examination by Mr Boylan BL put it to the witness that MMcC’s formal complaint was based on something that AH had told her. Ms Finucane stated that the Complainant was entitled to make a formal complaint if she felt that the safety plan had been breached.

The next witness for the Respondent was Ms Killeen White who informed the Court that at the time she was Chief Officer Southeast Community Healthcare. Ms Killeen White confirmed that she wrote to the Complainant on 14 September 2022 informing him she was convening a disciplinary hearing under stage four of the procedure. The allegations were set out, he was provided with a copy of the disciplinary policy and the investigation report. He was advised of the right to be accompanied, and that the outcome could be dismissal.

 It was her evidence that the Complainant was represented by his Trade Union Official at the disciplinary hearing. No issue was raised about the fact the hearing was convened under stage four of the process.  At the disciplinary hearing the Complainant provided a written response to the allegations, which he had signed. By letter of 14 October 2022 the Complainant was advised of the outcome of the disciplinary hearing.

It was Ms Killeen White’s evidence that in coming to the decision that dismissal was the appropriate sanction that she did consider alternatives such as re-deployment, demotion and or relocation. However, her conclusion was that all those options would require having to put controls in place wherever he worked, and she did not believe this was feasible based on the seriousness of the complaints, which had not been denied.   She stated that she also took into account the seriousness of the findings and the fact that he had confirmed that he had admitted the behaviours with the exception of one. It was her belief that anything short of dismissal would not be appropriate. The witness informed the Court that the appeal from her decision lay to an independent appeal committee.

Mr Boylan BL in cross examination put it to Ms Killeen White that the dismissal was based on incidents that occurred between October and November 2019, and at the time they were raised, December 2019, these issues were treated in an informal manner which raises a question as to how they become a dismissal matter in 2022.

The witness stated that she was dealing with the investigation report and his admissions at the disciplinary hearing and that was what led her to decide dismissal was the appropriate sanction. The Complainant was always on notice that the issues could move from informal to a formal investigation.  In response to a question from Mr Boylan BL the witness confirmed that she did not hear from the person who made the complaint as part of the disciplinary process.

4 Summary of Complainants submission

Mr Boylan BL on behalf of the Respondent submitted that the sole complaint grounding the investigation, report and disciplinary procedure process was that made by MMcC on 28 January 2021. The substance of the complaint related to matters from 2019 which had previously been processed as an informal complaint. A second person AH also made an informal complaint in 2019. Those complaints were raised under the Dignity at Work Policy (2009) and dealt with by way of a safety plan.  It is the position of the Complainant that the matters that led to his dismissal had been dispensed with in 2019 by was of a safety plan and therefore spent. Mr Boylan BL submitted that the MMcC 2021 formal complaint that ultimately led to dismissal was grounded on the same facts as the MMcC 2019 informal complaint. It is the Complainants position that the complaint was subjected to unfair procedure in having to face allegations already dealt with and or was subject to unfair procedures in that the matters arising were not dealt with by reference to either safety plan, also noting that there is no reference in the any of the Respondent’s procedures for a safety plan.

It is also the Complainant’s submission that the decision to dismiss was disproportionate.  The Complainant in his evidence to the Court will say that he believed he complied with the requirements of the safety plan even though he had to alter his routines to do so.  The Complainant had no further intentional contact with MMcC once the safety plan was in place although he did have unintentional interactions with AH, on or about 18 January 2021 which resulted in a further informal complaint by AH and further additions to the safety plan. In her letter of 28 January 2021 MMcC acknowledged that the issues occurred between October and November 2019 and that the safety plan had been adhered to from January 2020 to December 2020. However, she went on to say there had been a clear deterioration and she linked it to an incidence with AH on 18 January 2021 and stated, “his actions on Jan 18 have proven to me, the respondent does not respect the safety plan”.    This is clearly an attempt by MMcC to reopen an earlier complaint. The Respondent on foot of that letter instigated a formal investigation into allegations of sexual harassment made between October and November 2019 listing eight allegations. The Complainant received a draft copy of the investigation report on or about 22 May 2022 and took issue with several findings. This was not recognised in the final report which found on the balance of probabilities that the incident of 15 November occurred despite the Complainant denying this.   Based on the report the disciplinary procedures were invoked and a hearing at level four instigated. It is clear from the notes of the disciplinary hearing it only dealt with matters from October and November 2019 and did not deal with the safety plan or alleged breaches of same. By letter of 14 October 2022 the Complainant was informed that he was being dismissed. The Complainant sought to have some of the facts recorded in the letter from KKW on 14 October 2022 amended but to no avail.

It is the Complainant’s submission that he was informed by his Trade Union Official that he would not receive a fair appeal and therefore he did not appeal the decision to dismiss. Instead, he lodged a complaint with the WRC.

Mr Boylan BL submitted that the burden of proof lies with the Respondent to show that the dismissal resulted wholly or mainly from one of the matters specified in section 6 (6) of the Act and they have failed to do so.  The Complainant believes that his side of the story was not heard.

Mr Boylan BL opened the case of DHL Express (Ireland) Ltd and Michael Coughlan (UDD1738) to the Court noting in that case that the Court had found that the employer had given undue weight to the Complainant’s previous disciplinary record and that there was little, or consideration given to alternative sanctions.

Mr Boylan BL submitted that the principles behind the doctrine of Res Judicata while generally applicable in respect of abuse of process relating to litigation are also located in the wider context of fair procedures. It was his submission that the process the Respondent followed was unfair as the Complainant had been sanctioned twice for the same issues. 

 5 Summary of Complainant’s evidence

 The Complainant in his evidence to the Court set out the details of his role with the Respondent. He stated that in November 2019 his manager called him to the office and read out a few things alleged against him and asked him to comment. His response was that he was shocked as he had worked there since 2007, and this was the first time anything liked this had happened.

The Complainant confirmed that the issues contained in the Safety plan were what he was alleged to have done. He confirmed that he was asked to read the Dignity at Work Policy and when he did, he realised how his gestures could be interpreted. He confirmed that he signed the Safety plan and that he accepted that the behaviours had happened, but it was not his intention to make people uncomfortable.

He stated that he had one meeting with his manager in an informal manner then the plan was drawn up.  He confirmed that he was not disputing that he signed the Safety plan and after that he had no further interactions with MMcC.

 In January 2021 the safety plan was updated as there were two incidents. At the time he did not realise the implications of these incidents. He confirmed that was the last time he had any interactions with AH. The following week he was called in about the incidents and was told that it was a breach of the safety plan. He stated that he signed up to the amended plan on 22 January 2021 not because he accepted it, but because he wanted to move on.  He confirmed that he was not told when the safety plan would end. When he was informed that MMcC had put the issues into the formal process he stated that he was disappointed and stressed. He confirmed that he accepted what the investigation report said but he felt it wasn’t put into context. He does not accept the sexual assault allegation of placing his hand on some one’s buttocks.  However, he accepted that the other incidents such as kissing one of his colleagues on the forehead had happened, but he believed it was taken out of context and for him it was a friendly gesture.

Under cross examination Ms Guinness BL put it to him that he was told that MMcC and or AH could take their complaints formal at any stage. He accepted that.  The Complainant stated that as a result of the Safety plan he had to alter his routine, but that he felt his actions and behaviours were misinterpreted.

In January 2022 he contacted his Union and had an informal conversation with his Manager about the Safety plan. At that point he provided all the documents to his Union. He confirmed that he had Union representation at both the investigation meetings and the disciplinary meetings.   He confirmed that at the disciplinary meeting with the exception of placing his hands on someone’s buttocks he accepted the issues that were identified.

Ms Guinness BL asked the Complainant why he did not appeal the decision to dismiss. He stated that he did not think it would be good for him as he was being referred to CORU under fitness to practise

6 Relevant Law

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

6.Unfair dismissal

(1)

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.

(2)……………..

(3)………….

(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:

(a)

the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)

the conduct of the employee,

(c)

the redundancy of the employee, and

(d)

the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

7 Discussion and Decision

Mr Boylan BL for the Complainant submitted that the original complaints were spent as they had been dealt with by way of safety plan in 2019 and appears to suggest that on that basis they could not be revisited and in fact to do so would be contrary to fair procedure. It was not disputed between the parties that in 2019 complaints were lodged and were processed through the informal procedure.  The outcome of the procedure was that the Complainant would sign up to a Safety plan.  The third paragraph of the plan states “the safety plan is implemented in line with the Informal Stage of the Dignity at work policy. It is the request of the two staff members for the matter to be dealt with informally at this point in time. However, the complainants can opt to go the formal route at any point in time if they feel the matter is not resolved.”

The safety plan set out the essence of the complaints, the impact of the behaviour on staff, what supports were available to him and the requirement for his behaviour to change.  It is clear from the documentation that the safety plan was not disciplinary in nature but instead sought to correct inappropriate behaviour.   The trigger for issues to be moved to the formal route as set out in the safety plan was “if they feel the matter is not resolved”. Further issues arose in January 2021 (which is not disputed) that required additional behaviours to be added to the Safety plan and in January 2021 MMcC indicated that she wanted her complaints processed through the formal procedure as she did not believe the maters had been resolved.

Having looked at the safety plan the Court does not accept that the original complaints by MMcC were spent once the safety plan was put in place nor does it accept that by agreeing to the Safety plan, she had waived her right to have the issues processed through the formal procedure at a later date. The Court in coming to this conclusion also notes that the Complainant’s evidence was that he knew they could still opt to have the issues processed through the formal procedure even though he had signed up to the safety plan.

The Complaint received a draft copy of the investigation report and submitted a response disputing some of the evidence contained in the report. The Complainant submitted to the Court that the issues he raised were not taken on board. The Investigation Officer in the final report at paragraph 3.9 states “Comments received from the Respondent were considered by the Investigator in the completion of the final report and are included in Appendix 10 of this report”.   On the 17 October 2022 the Complainant’s union wrote to the Respondent asking that they review the decision to dismiss and raising issue about two specific references to AH which they felt should not have been included as AH was in a separate process. A response was issued on 20 October 2022 confirming that no substantive discussion took place during the disciplinary interview in respect of the statement by AH and reaffirming the decision to dismiss and providing the details required to lodge an appeal.

 Having considered these issues the Court does not find that they are sufficient to consider the process fatally flawed and or not meeting the standards of fair procedure.

The final issue the Court considered was whether the decision of the Respondent fell within the “band of reasonableness” as articulated in the caselaw citied earlier and the Court found it did. The Court found based on the submissions before it and the evidence it heard that the Respondent believed that the Complainant had misconducted himself as alleged based on the outcome of the investigation which was carried out and the admissions by the Complainant. Taking into consideration the nature of the misconduct, the Court finds that the decision to dismiss the Complainant falls within the band of reasonableness and therefore the Complainant was not unfairly dismissed.

The appeal fails. The decision of the Adjudication Officer is upheld.

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
13th May 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.