Complainant

Respondent

Parties

Lee  Caluan

Concern Worldwide Concern

Complainant

Respondent

Anonymised Parties

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Representatives

Garry McCabe

Brian Joyce IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065230-001

06/08/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant undertook to give his evidence under affirmation.  Five witnesses for the respondent undertook to give their evidence under affirmation with a further witness undertaking to give evidence under oath. Cross examination was facilitated.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The respondent submitted that a full and fair investigation found that the complainant had carried out acts of gross misconduct for several breaches of the code of conduct, with his behaviour also aligning with the breach of the bullying and harassment 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.

The respondents submitted that at the end of August 2023 three telemarketing executives submitted a formal complaint relating to the conduct of the complainant. It was noted that these three employees were indirect reports of the complainant reporting to their team lead in the first instance.

The respondent submitted that the matter was investigated by its investigations manager who notified him of the allegations against him. The complainant was notified that two investigation officers have been appointed, he was advised of his right to representation, and he was provided with a copy of the complaint, grievance and disciplinary procedures, terms of reference and the employee assistance policy. It was found and outlined stages that were taken in relation to the investigation, meetings with various witnesses and the taking of notes. The notes of the interviews with the three witnesses were provided to the complainant before he attended his own investigation meeting. It was submitted that he chose to attend this meeting without representation.  Following the decision of the disciplinary panel, the complainant submitted an appeal and this was considered by the respondent.  The appeal upheld the dismissal decision.

Witness evidence:

The first witness for the respondent was the investigations manager for the respondent. She stated that she had met the complainant previously when she had facilitated this account of a staff member. She noted that the investigation was initiated on foot of a written complaint from three staff members. She noted that the complaint was not appropriate for mediation under the respondents’ guidelines. She said that the witness statements were shared with the complainant. She noted that the investigation did not proceed while the complainant was on sick leave and that initially he did not want to engage with the investigation. He declined any further or follow up investigations and the report was sent to him for his comment and the differences in recollection he pointed out were included in the final version. She noted that he did not take ownership of all of his actions but made admissions on certain issues. The report was reviewed and sent on to the disciplinary panel as is normal in the course of these events. She admitted that the investigation took a long time but noted that this was due to sick leave, and occupational health and other issues. She also noted that annual leave also played a part in the delay in issuing the report. She stated that she had no further involvement after issuing the report.

Under cross examination it was put to her that certain other staff members should have been asked to be witnesses but she noted that they were not cited by any of the witnesses nor the complainant in the course of the investigation.

The second witness for the respondent was the investigation officer. He prepared for the meeting by looking at the terms of reference and any mitigation factors raised. The complainant noted that the team leader was not there at the time and he was doing 3 jobs. He stated that it was a stressful personal time in his life and that he might have been overly short with the people he worked with. He acknowledged that he called a member of staff a ‘bitch’. The witness stated that a large part of the witness evidence given supported most of the allegations made. He noted however that there was insufficient evidence to substantiate two of the allegations made against the complainant.

He was asked whether the complainant had received training in relation to bias and noted that he had as it was in the training, which was very detailed training, completed by the complainant in November 2019. He also outlined that the complainant had undertaken the safeguarding module an annual basis and the coaching for managers course.

Under cross examination he was asked was the training provided adequate and he said that yes it was adequate with the introduction of the second-generation element.

Under redirection he was asked was the personal improvement plan of any relevance to the interview and he stated that there was no impact from it as they were not aware that he was on personal development plan.

The third witness for the respondent what is the Senior HR Administrator. She noted that she was also working as an investigation officer.  She noted that the complaints were originally sent in as a joint complaint, but she spoke with each individual and ensured that the complainant had transcripts of these interviews available to him. She stated that during her interview with the complainant which was online he was unrepresented, but she offered him the choice to proceed or not. In advance of the meeting, she drew up a list of who would be attending and the question of one person giving evidence, as has been suggested at the hearing, was not raised in relation to the investigation. Another witness whose name was given at the outset was interviewed.

The witness noted that the complainant did not avail of the final interview in the process. He returned to work as certified by his own GP and he never replied to any of the witness statements that had been provided to him. She stated that the process concluded after the complainant was offered the opportunity to comment on witness testimony. The option of cross examination was not availed of.

The next witness for the respondent was on the disciplinary panel and noted that she had some prior contact with the complainant in a business relationship. She noted that the Disciplinary panel was extended to enable the complainant to consult with his HR advisor. He was informed that although the advisor was not allowed to speak on his behalf, the complainant was informed that the panel could facilitate breaks in order to discuss matters with his HR advisor. In the end he decided not to bring an advisor with him.

She gave evidence as to how the disciplinary panel preceded the report was reviewed: both the testimony and the findings process was outlined to the complainant who was offered another option to be accompanied, he read out prepared statement, dealt with the questions and then she closed the meeting. She noted that he raised issues and mitigating factors. The complainant raised the issue of a conspiracy by the three staff members who made the original complaint, noted that the process was flawed and submitted that the process needed to consider generational dynamics. He stated that they didn't like him because he was a good manager. He described any comments he made as water cooler moments but described himself as perhaps naive. It was put to him that he was repeatedly asked to cease certain behaviours.

The disciplinary panel came to a collective decision that the behaviours of the complainant amounted to gross misconduct and decided that the appropriate sanction for the complainant was dismissal. They talked through other options but, as there were so many breaches of the code of conduct, that they felt no other sanction was appropriate. There were no underlying circumstances that would mitigate the complainant’s behaviour.

Under cross examination it was put to the witness that when they referred to random bouts of anger that perhaps this was simply robust discussion which was evidenced throughout the witness and complainant evidence during the disciplinary process. She noted that the evidence was there regarding his annoyance displeasure and hostility towards his coworkers. She noted that there were repeated incidences of inappropriate behaviour directed toward one particular staff member.

The next witness was a member of the appeals panel. She noted that the offer to be accompanied during the proceedings was given to the complainant, but he declined the option. She familiarised herself with all the documentation in advance of the meeting and noted that the HR Adviser was there to take notes only, and she also noted the grounds of appeal. There were 4 grounds of appeal none of which related to a missing witness. She stated that her role was to review the appeal to see whether fair process was followed whether disciplinary sanction was appropriate and that the conclusions reached or appropriate in all the circumstances. She noted there was no acceptance on the part of the complainant as to his behaviours. She felt that the appeal was dealt with very thoroughly and she did consider lesser sanctions, but these were not considered appropriate to the severity of the infringements.

Under cross examination she was asked did she read the full notes after the appeal meeting and she clarified that she had read the notes before the meeting. She stated that she considered all of the notes in light of the grounds of appeal that were submitted for consideration. In relation to contradictory or exaggerated evidence she agreed that there were inconsistencies but none of a level that concerned her. Of the seven substantiated claims she stated that there was sufficient corroboration for them to be upheld. She felt that the basis of the evidence was sufficiently robust to uphold the dismissal on appeal.

It was put to her that certain people were not pressed to give their statement, and she noted that they had not made any complaint. She stated that she was satisfied that there was no evidence of collusion or coercion amongst any of the witnesses. She was asked again did any of the witness evidence cause her to have concerns but responded that she had no concerns and if they were completely consistent, she possibly would have had real concerns. Ultimately, she felt it was robust enough to uphold 7 of the 9 allegations on appeal.

The complainant submitted that he was unfairly dismissed on 13 June 2024, on the basis of a bullying and harassment claim. A complaint was made against him by a group of his indirect reports in September 2023. The investigation commenced the following month. The complainant with off on certified sick leave until February 2024 when he returned to work. At this stage he was asked to work from home, this had a further detrimental impact on his mental well-being. The investigation concluded and the findings were communicated to him. A disciplinary meeting followed and the complainant was dismissed. The matter was appealed and the initial judgement was upheld.

The complainant submitted that a small cohort of his former colleagues had taken a dislike to his management style while he was attempting to drive their performance levels to meet the respondents’ targets. He submitted that they turned the tables on him by complaining about his management style. He submitted that the investigation minutes were riddled with inconsistencies from the alleged victims of his bullying and harassment and did not support the narratives of the complaints against him.

The complainant submitted that the process was unfair under two headings: the disproportionality of the sanction and the unfairness of the process. The process was unfair in that the respondent sought to build a significant case against him by interviewing numerous colleagues who have departed the business who had been friendly with the complainants. It was submitted that it was clear from the investigation notes that three of the complainants had corroborated their evidence which were directly contrary to the testimony of the alleged victims. In essence key procedural safeguards were overlooked undermining the fairness of the process. It was submitted that the finding of bullying did not meet the definition set out in the Workplace Relations Commission Code of Practice. In the code, bullying involves repeated inappropriate behaviour which was not substantiated in the case against him.

Oral evidence:

The complainant made a number of points in relation to the disciplinary process and subsequent dismissal. He noted that the disciplinary action was only based on the complaints made against him and of the seven substantiated allegations there was a lack of cooperation either in that the individuals did not recall them or that they recalled him in far less detail than was raised in the original complaint forms. He stated that the investigation failed to consider these discrepancies and that critical persons were not interviewed. He noted that this was a Gen Z/Woke alliance against him.

The second point raised was that one of the witnesses noted that she did not hear him saying the N word but that this individual is now isolated within the section.

His third point was that there was no corroboration of claims against him he said that witnesses in the investigation had different recollections: neither of anger nor of aggression.

The next point raised by the complainant is that there were proven lies and exaggeration in the claims against him and that they were deeply flawed. He noted that the key protagonist used the word ‘uncomfortable’ a lot without expanding on what was meant by that.

His fifth point was that there were false allegations of racial slurs made against him he did not use the N word, noting that this is not borne out anywhere in the evidence against him.

His sixth point is that there are contradictions in the allegations being put forward by the three individuals. He stated that there were no specific sexual comments made but comments made with sexual undertones that were too frequent. He noted that there was a different narrative in various different parts of this claim made against him.

In his next point he raised the fact that only he was taken to task for bad mouthing a colleague, but others who did so were not taken to task but were bad mouthing colleagues.

He then raised the issue of a financial motive on the part of witnesses wherein one asked whether they would be compensated for the time they had given to the investigation.

In summary the complainant put forward that he had an untarnished record and there was no record of poor performance. Within this section he was accused of ‘deadnaming’ a colleague and that this gave rise to the whole issue - there was a marked change in how he was treated thereafter.

The respondents representative gave a point-by-point rebuttal of the issues raised by the complainant but did not engage in cross examination.

The complainant did not outline any efforts to mitigate his loss.

The respondent outlined that the decision to dismiss the complainant was based on a full and fair investigation where he was notified of the allegations, had an opportunity to respond, was provided with the documentation but chose not to respond and chose not to be accompanied to the various different stages of the process. He was offered the opportunity to avail of an appeal but ultimately the finding of gross misconduct was upheld and the complainant was dismissed. The respondent submitted that it was reasonable and appropriate in all the circumstances and any reasonable employer would have done the same thing.

The complainant submitted that there was a disproportionality of the disciplinary process and he noted that seven core allegations where upheld, but it was not clear what this substantiated. He stated that the process was procedurally unfair in that a witness should have been called but wasn't and he stated that natural justice was not followed because the chief protagonist had a problem with the complainant and this gave rise to bias in the person making substantive claims against him.

There were a number of witnesses who gave evidence in relation to the case, I found all of them to be credible and have no doubts as to the veracity of the witness evidence that came before me.  This includes the complainant.  However, it is neither the function nor the role of the Adjudication Officer to replace either a disciplinary board or an appeals panel, the role of the AO is to ascertain whether fair procedures have been followed and to consider what a reasonable employer would do in the circumstances.

Section 6(1) of the Unfair Dismissals Act states as follows:

6.—(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.

Section 6(4) 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:

(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.

The Code of Practice on Grievance and Disciplinary Procedures issued by the Workplace Relations Commission at point 4.6 sets out essential elements that should be followed in Disciplinary procedures as follows:

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 respond fully to any such allegations or complaints

That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

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, circumstances.

Although the complainant may disagree, the preponderance of the evidence presented indicates that the respondent complied with the principles outlined above.  The respondent noted that the decision to dismiss the complainant was based on a full and fair investigation where he was notified of the allegations and had an opportunity to respond to them.  He was provided with the documentation but chose not to respond to the documents to any great degree.  He was offered the opportunity to be accompanied to the various different stages of the process but chose not to avail of this option. He was offered the opportunity to appeal the decision and availed of it.  Ultimately the finding of gross misconduct was upheld on appeal and the complainant was dismissed.  This process outlined to the hearing was supported by both documentary and oral evidence,

The respondent submitted that it was reasonable and appropriate in all the circumstances and any reasonable employer would have done the same thing.  Having regard to the definition of Unfair Dismissal contained in the Act and to the Code of Practice on Grievance and Disciplinary Procedures, I find that the procedure was not unfair nor or in breach of the principles of natural justice.  The respondent outlined the steps that they took and I find that they are not at odds with the Code of Practice.  No breach of natural justice was identified by the complainant such as to render the respondent’s procedure unfair.  Having considered the procedures followed by the respondent and the resulting outcome, I find that the outcome falls within the range of what a reasonable employer would find as appropriate and proportionate.  Therefore, I find that the complainant was not unfairly dismissed.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the dismissal of the complainant was not unfair.

Unfair Dismissal – Code of Practice on Disciplinary Procedures followed – dismissal was not unfair