ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048231

Parties:

Complaints:

Date of Adjudication Hearing:  05/09/2024 & 06/09/2024 & Post-hearing Submissions

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

These complaints were referred to the Workplace Relations Commission (hereinafter ‘WRC’) under Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts 1977-2015 on 6th October 2023.  Detailed written submissions and an extensive volume of documentation were received on behalf of both Parties.  Following delegation to me by the Director General, 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 5th and 6th September 2024, followed by written submissions.  The Complainant was represented by Mr Cillian McGovern BL instructed by Crushell & Co. Solicitors and the Respondent was represented by Mason Hayes and Curran LLP.  It was confirmed that the Complainant had also instituted parallel Personal Injury Proceedings against the Respondent.  A large number of witnesses appeared on behalf of the Respondent.  The correct name of the Respondent was confirmed as ‘eBay European Services Limited’ and was amended accordingly on consent.  The hearing was held in public and evidence was taken on oath.  The Parties were made aware that their names would be published herein.

It should be noted that the inter partes correspondence referred to below is but a fraction of the voluminous documentation submitted and all has been considered with only the relevant portions cited.  Noting an exchange between the Parties regarding compliance with a data access request, I was satisfied that all documentation material to these complaints had been furnished.  At the hearing, complaints ref nos. CA-00059268-001 and CA-00059268-002 were withdrawn.  The remaining two complaints proceeded and comprised (1) of a complaint of penalisation arising from the making of two protected disclosures under Schedule 2 of the Protected Disclosures Act 2014 (as amended) where the Complainant bears the burden of proof subject to the presumptions in his favour; and, (2) a complaint of unfair dismissal under Section 8 of the Unfair Dismissals Acts 1977-2015 where the Respondent bears the burden of proof.  Accordingly, the Complainant gave his evidence in relation to his complaint of penalisation first and following the close of the Respondent’s evidence, gave additional evidence in relation to his complaint of unfair dismissal.  There was an overlap of the facts between the two complaints.  At the hearing, the complaint of unfair dismissal was presented as a complaint of unfair dismissal simpliciter under Section 6(1) of the Unfair Dismissals Act 1977 (as amended).  However, in further written submissions, it was contended that the Complainant had been dismissed as a consequence of making the two alleged protected disclosures, and accordingly his dismissal also fell to be determined as being contrary to Section 6(2)(ba).  This provides that without prejudice to the generality of Section 6(1), the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from the employee making a protected disclosure.  For the sake of completeness, I have considered both provisions.

Following the hearing, time was allowed for the exchange of further written submissions and in particular, further clarity on behalf of the Complainant as to how the two purported protected disclosures constituted ‘relevant wrongdoings’ under Section 5(3) of the Protected Disclosures Act 2014 (as amended).  Further written submissions were received on behalf of the Complainant but did not add any further clarity to the legal issues to be determined.  Whilst new factual issues were raised by the Complainant within an updated personal statement, for the reasons set out below, they were not sufficiently material to require reconvening the hearing and the Respondent was afforded a right of reply in writing.  Apart from the post-hearing submissions, the copious volume of documentation and evidence, difficulties deciphering the inter partes correspondence and the lack of legal clarity contributed to a delay in concluding this matter.

Background:

The Complainant was employed by the Respondent between 18th January 2021 and his dismissal on 22nd September 2023.  He contended that he had been subjected to penalisation owing to the making of two protected disclosures and ultimately had been unfairly dismissed.  At the material time, he had an annual salary of €36,670 plus bonuses and sought compensation.  The Respondent contended that these were not protected disclosures, any alleged penalisation did not arise from same and further that the Complainant’s employment had been fairly terminated in accordance with Section 6(1) of the Unfair Dismissals Act 1977 (as amended).  Accordingly, the Respondent sought to have both complaints dismissed as being unfounded.

Summary of Complainant’s Case:

Direct Evidence of the Complainant – Complaint under the Protected Disclosures Act 2014

The Respondent is a global online marketplace and has a registered branch in Ireland.  The Respondent facilitates transactions in various categories of goods between sellers and buyers in different geographic locations.  The Complainant confirmed that he had commenced employment with the Respondent on 18th January 2021 as an eBay@Home Customer Experience Teammate and had worked within a number of departments.  He was initially on a gross annual base salary of €28,500 for a 40-hour week.  At the time of his dismissal on 22nd September 2023, he held the title of ‘GCX Customer Support Agent’ and his annual salary had increased to €36,670 plus bonuses.  The Respondent operates a remote working model, and the Complainant had worked fully remotely from home using a pre-approved office space and IT equipment provided.  His role entailed handling customer queries within a team of eight other employees.  His induction training was delivered through Zoom and covered his role, what was expected of him and communications with customers.  All communications with other team members and management were conducted remotely and the Complainant had little or no in-person contact with colleagues.  In February 2022, Mr A took over as his Line Manager and Ms B was one of the Team Supervisors at the material time. 

The Complainant contended that he had no issues with his employment or inter-personal difficulties with Mr A for over a year.  However, the crux of his problems began after Mr A had required his involvement in a potential GDPR breach (referred to as ‘the GDPR breach issue’) in June 2023 and the improper disposal of a customer’s property (referred to as ‘the handbag destruction issue’) in July 2023 and he had reported both issues to HR.  At the hearing, it was contended that both issues constituted protected disclosures.

The Complainant outlined each of these issues in minute detail.  On 6th June 2023, he had received a Slack message via a work group from a team member asking if he could provide her with account log-in details to access a courier to make a claim for compensation for an item.  He had considered this unorthodox and more appropriate for a manager to make.  He was aware that a former teammate had created the log-in with the courier in question using her work email address to test a new process.  The Complainant had access to the log-in details as he had tested the new process within the context of his role at the time.  The Complainant felt that he was being asked to share the email and account details of a former colleague who was no longer available to give her consent.  This was based upon annual GDPR training provided by the Respondent confirming that personal account details cannot be shared without an individual’s consent.  He refused to continue the conversation with his teammate, making it clear that he could not provide the log-in details as this would constitute a GDPR breach potentially constituting gross misconduct.  Ms B who was also a member of the Slack group had then renewed the request on behalf of the team member and Mr A had also intervened informing the Complainant that he did not see any issue with sharing the log-in details.  The Complainant maintained that he could not assist and asked them to deal with the matter internally.  He did however share a link giving them access to the account.  He had reported this as a grievance to HR but it had not been treated with the appropriate seriousness, addressed at first instance or upheld on appeal. 

In terms of constituting relevant information constituting a ‘wrongdoing’ within the meaning of Section 5(3) of the Protected Disclosures Act 2014 (as amended), the Complainant contended that the accessing of a former colleague’s account by other colleagues would create a false claim for compensation.  It was further contended that this also constituted a breach of the GDPR, constituting a potential criminal offence within the meaning of Section 5(3)(a), being that an offence has been, is being or is likely to be committed. 

The Complainant maintained that he had been treated differently thereafter and isolated by Mr A.  Their communication deteriorated and their regular one-to-one meetings dwindled with Mr A missing meetings.  On 21st June 2023, the Complainant took issue with Mr A adding a requirement to improve his communication style to his coaching plan in the absence of any context or proof of any such issue existing.  This had been endorsed by Mr A’s Manager.  The Complainant contended that his training had been primarily on phones and he had not received full training on emails and chat.  He regarded thorough and clear communication as being important and described his own communication style as direct and logical. 

The Complainant alleged that on 22nd June 2023, he had been reallocated to email duties when he was already overburdened with work without any consultation regarding his capacity.  When he had raised this with Mr A in writing on the same date, Mr A had responded that the Complainant should undertake the work that he was being asked to do.  A number of Slack exchanges were opened including messages between the Complainant, Mr A and Ms B.  Mr A had messaged the Complainant: “Did the lads bring you through the plans?”  The Complainant had replied: “No can do, I’ve tons of things to do and I also have to check my WIP’s.”  Mr A had later messaged: “The ask is for you to move onto emails please.”  The Complainant had replied: “Your reply is denied.”  Mr A had responded: ”Sorry” and the Complainant had replied: “Your reply is tasks assigned over 24 hours.  I cannot ignore them.”  The Complainant explained that as the word “ask” implied the option of either acceptance or denial, he had used the word “denied”.  There had been no ill-intent on his part.  He had been overburdened with cases and stressed.  The email channel is the most difficult mode of communication and provides the worst customer satisfaction metrics thereby impacting on bonus payments.  Prior to June 2023, he had rarely been placed on the email channel but thereafter, he was regularly assigned.  This had an adverse impact on his mental state.  He had a meeting to discuss these retaliatory actions with HR on 23rd June 2023 and followed up in writing on 26th June 2023.  He was notified that this grievance would be split from his grievance regarding the GDPR breach issue which was under appeal.  He also raised a grievance with HR regarding Mr A’s communications with him.

Ms C was one of the Complainant’s teammates and had been promoted to Grade 18 in early 2023.  On 14th July 2023, the Complainant had raised a formal complaint against Ms C to Mr A arising from inappropriate communications contrary to the Dignity at Work Policy.  This complaint was only addressed in an outcome letter of 5th October 2023 following his dismissal and whilst not upholding his complaint against Ms C, it found that Ms C “should have communicated directly to you more effectively to avoid the above issues.”

On 20th July 2023, the Complainant had received an email from the seller of an expensive designer handbag enquiring as to its whereabouts and seeking its return.  He had processed the query and arranged for the return of the handbag.  He had then learned from Mr A and Ms C that the handbag had been destroyed despite there being no disposal policy for his department at the time.  He took issue with the fact that the destruction of the handbag had not been recorded anywhere and had been destroyed without the owner’s knowledge or compensation.  The Standards of Operation (SOP) had required Mr A and Ms C to follow through on the issue but instead, Mr A had asked him to liaise with Ms C.  He considered the disposal of this property without compensating the seller to potentially constitute gross misconduct which could be construed as being illegal.  When no action was taken within four working days, he had become stressed and concerned that he could be held complicit and had raised a grievance with HR on 28th July 2023.  In further written submissions, he contended that there had been no legal sanction taken against Mr A.

On 1st August 2023, the Complainant was called into an unscheduled meeting with a Temporary Operations Manager and was verbally informed that it was about (1) his refusal to comply with a direction and insubordination on 22nd June 2023; (2) his communications with Ms C giving rise to his complaint against her and (3) his coaching plan.  He recused himself from this meeting making it clear that two of the issues were subject to ongoing investigations with HR.  He also queried whether HR had approved the meeting and asked for this to be confirmed in writing.  The Temporary Operations Manager confirmed this by email.

The aforesaid events had a significant impact upon the Complainant’s mental health and at this point he had become unstable.  He had been put in a very stressful position whereby he doubted everyone’s actions regardless of their intention.  He felt that anything he did or said would be misinterpreted and that action was being taken against him for matters that had not been investigated.  He made his position clear in written communications to Mr A and HR, informing them that the situation was making him unwell.  He felt that Mr A had disconnected as apparent from their last meeting on 19th July 2023 and none of the ongoing issues were discussed or addressed.  Thereafter, Mr A had avoided interacting with him.  On 2nd August 2023, the Complainant had to take a half-day off work owing to a headache induced by work-related stress.  On 7th August 2023, he had emailed HR raising several new issues including various difficulties with Mr A.  He also requested a transfer to another department as being the only way of resolving his issues with Mr A. 

On 9th August 2023, the Complainant’s GP confirmed that he had suffered from a panic attack and certified him sick.  He had also attended for an occupational health assessment with the Respondent’s Doctor.  Whilst on sick leave, he had received emails from HR about his grievances.  He had returned to work on 4th September 2023 and was cleared for work by the Respondent’s Doctor from 5th September 2023.  On the same date, Mr A had requested his attendance at an unscheduled meeting which he had refused to attend because he had not been informed of its purpose.  He was later informed that it had pertained to back-to-work verbal counselling as confirmed in an email dated 6th September 2023 from Mr A.  He regarded this as being disciplinary in nature.  The Complainant had remained very stressed about his work situation.  In the interests of full transparency and clear communication, he had sent an email to HR requesting that all communications be in writing going forward as he was “losing trust in his manager”.  On 8th September 2023, he had received an email from HR confirming that his transfer was not being recommended and an informal discussion with Mr A towards reaching an amicable solution had been proposed.  He did not have confidence that this would be successful given their history and declined mediation.  He had no choice but to continue working with Mr A and his workplace stress continued.  On 20th July 2023, he was notified in writing that the Head of Commercial Operations who had investigated his grievances had not upheld them.  At the hearing, he contended for the first time that the Head of Commercial Operations had been compromised owing to a prior interaction with Mr A regarding the handling of a consignment of runners.

The Complainant had also attended his own Occupational Health Expert in relation to the adverse workplace treatment.  He referenced a Report which confirmed that this was an individual stress factor.  He contended that all the actions he had taken had been reactionary.  Overall, he felt that the two protected disclosures had not been properly investigated and instead he had been penalised for making same.  The alleged penalisation included not having his grievances properly investigated, being subject to verbal counselling for matters under investigation and being summarily dismissed after his return from sick-leave.

Further Post-Hearing Factual Submissions on behalf of the Complainant

Notwithstanding a clear direction from this Adjudication Officer that post-hearing submissions were to be confined to legal issues and were not to raise new factual matters, in an updated personal statement, the Complainant made additional allegations of penalisation against Mr A which had not been adduced in direct evidence at the hearing.  In particular, he further contended that Mr A had stopped grading his work between July 2023 and September 2023 and his last grading had been inexplicably marked down; that from the first week of July 2023, Mr A had instructed him to completely stop interacting with managers of other departments internally unless he was given explicit instructions from Mr A permitting same; that Mr A had not discussed a half yearly report he had submitted on 18th July 2023 at Mr A’s request; that Mr A had used the Complainant’s requirement for proof of communication issues when flagged in his coaching plan as justification for not promoting him and as a basis for initiating second level disciplinary action against him; that Mr A had never completed an investigation or taken any action regarding the formal complaint he had filed against Ms C on 14th July 2023 and he had subsequently been presented with a complaint Ms C had made against him; that Mr A had misused the verbal counselling process in various respects and the close proximity between the protected disclosures and the actions against him for matters that had occurred sometime previously were indicative of penalisation; that subsequent to the incident on 22nd June 2023 when he was reallocated to emails and told that was mandatory, another colleague who had refused a similar request the following day had not been forced to move over to emails and that on 30th June 2023 and 5th July 2023, Mr A had added to the internal weekly workload assignment roster sheet: “subject to change and as the need arises”  The Complainant had also revisited the matters covered in evidence in more dramatic terms, attributing all of his difficulties within the Respondent’s workplace to Mr A’s conduct.  He further contended that this conduct had also adversely impacted upon his quarterly bonus payments which had not been referenced previously.  Solicitors for the Respondent objected to these submissions as raising new untested factual matters.  For the reasons set out below, it has not been necessary to reconvene the hearing as findings on these factual issues have not been required for my decision herein.

Cross-Examination of the Complainant

The Respondent’s Solicitor observed that the Complainant’s evidence had been difficult to follow at times.  He questioned the Complainant in relation to the two issues purported to constitute protected disclosures giving rise to the alleged penalisation.  The Complainant maintained that he was attributing everything adverse that had happened to him during his employment from June 2023 onwards solely to the making of the two protected disclosures.  It was put to him that at no stage during his evidence had he mentioned that the key issue of contention with Mr A and the Respondent throughout his employment had been his lack of promotion.  He responded that his lack of promotion had occurred prior to the making of the protected disclosures and as such, was not attributable to the penalisation he was subjected to thereafter.  He was asked, why then had he also raised a grievance about his lack of promotion within his email of 15th September 2023 to HR (when asked by the Head of Buyer Experience to set out his position in relation to the breakdown in trust and confidence) without making any reference whatsoever to the two alleged protected disclosures.  The Complainant responded that he had raised the protected disclosures separately to this grievance.  Albeit unhappy with the outcome, he accepted that management had investigated the subject-matter of his two alleged protected disclosures.  He also accepted that his issues with Mr A had started in March 2023.  It was put to him that this date pre-dated his alleged protected disclosures. 

Regarding the GDPR breach issue, it was put to the Complainant that the email address requested related to a ‘test account’.  When pressed, he accepted that he had not been disciplined in a “written capacity” in relation to his refusal to provide same.  Regarding the handbag destruction issue, he was asked whether he was alleging theft.  He responded that he was not legally qualified to answer this but its handling had been “very incorrect”.  However, he would not accept that the height of this issue was that the correct internal procedures had not been followed, maintaining that it was a “potential legal breach”.  When pressed, he accepted that he had not been disciplined in relation to his handling of the matter “in written form”.  It was further put to the Complainant that the handbag had been mouldy and therefore had to be destroyed for health and safety reasons following five unsuccessful attempts by the Respondent to return it to the owner. 

The Complainant was then questioned in relation to the alleged penalisation suffered.  He agreed that his complaint about the lack of meetings with Mr A had been reviewed as part of a grievance process.  It was put to him that work on emails was part of his job and as such the alleged penalisation was essentially a request to do his job on 22nd June 2023.  He disagreed contending that he had been assigned different work for the day in question and had not been consulted about his capacity to work on emails beforehand.  However, he accepted that it had not been appropriate to reply to Mr A’s request with the word “denied”.  He also accepted that he had not suffered any financial loss by virtue of being required to work on emails.  The Complainant confirmed that the alleged penalisation included the denial of additional training requested in 2022.  It was put to him that this could not constitute penalisation as this would have predated his alleged protected disclosures.  He maintained that as a decision on a complaint against him had not factored in his lack of training and had persisted until his dismissal, this constituted penalisation.  He disagreed with the Respondent’s position that ‘verbal counselling’ does not constitute disciplinary action and does not impact upon promotion.  The Complainant confirmed that his relationship with Mr A after the verbal counselling had not improved.  He was asked whether he had refused meetings with Mr A.  He replied that he had required clarification in writing as to the purpose of the meetings beforehand.  He was asked whether his email correspondence to Mr A had been professional and appropriate.  He replied that the correspondence reflected his stress levels at the time.  He elaborated that he did not have a normal relationship with Mr A as there was no communication and he had lost trust and confidence in him.  It was put to the Complainant that all the personnel who had dealt with his various grievances had been independent which he did not contest.  He also agreed that he had declined mediation offered to him.

Direct Evidence of the Complainant – Complaint under the Unfair Dismissals Acts

Following close of the Respondent’s evidence in relation to both his complaints under Schedule 2 of the Protected Disclosures Act 2014 (as amended) and the Unfair Dismissals Act 1977 (as amended), the Complainant resumed evidence in relation to the latter.  He outlined the events giving rise to his dismissal from his perspective.  He had gone on stress-related sick leave for two weeks between 9th August 2023 and 4th September 2023 caused by his work situation which was notified to Mr A and presumably to HR.  He confirmed that the medical certificates he had submitted had not cited the cause of illness.  He had returned to work after being asked to attend an occupational health medical examination by HR on 5th September 2023.  On the same date, Mr A had called him to attend a Zoom meeting at short notice.  He had asked Mr A for clarification of what the meeting was about and requested advance notice of the content of any meetings.  He had received an email from Mr A confirming that he was being issued with verbal counselling for his absences which had stressed him immensely.  The email had also referenced a policy which had changed during his absence and he had queried how it could be retrospectively applied. 

Towards the end of his shift on 22nd September 2023, the Complainant had received two letters five minutes apart from the Head of Buyer Experience, the first declining his appeal in relation to his grievances and the second terminating his employment with immediate effect.  He had been removed from all communication channels before receiving the email confirming the termination of his employment.  This had an adverse impact on him and he was very close to having another panic attack.  He managed to gather himself and submit an appeal within the permitted five working days.  He did not hear anything back until 18th October 2023 when he received the appeal outcome upholding the dismissal.  There had been no due process or fair procedures and he was “absolutely blind-sided by this action” which he had not foreseen.  Whilst the Respondent claimed that there was a loss of trust between the Parties as the basis for his dismissal, he had made it very clear that his loss of trust only pertained to Mr A and not with his employment or the Respondent.  He had applied for a transfer internally and had been waiting to hear back.  It was shocking that on the one hand he had been invited to apply for jobs internally on 8th September 2023 whilst at the same time he was dismissed out of nowhere on 22nd September 2023. 

In terms of mitigation, the Complainant had applied for various alternative positions until 2nd November 2023, when he had received a request to undertake a complex aptitude test for a technical support position.  This was successful and was followed with an interview process which took considerable preparation.  On 28th November 2023, he was offered the position to commence work on 9th January 2024.  He had been completely focused on preparation for this position so had not applied for other positions during this period.  His current salary is €45,000.  His dismissal had not adversely impacted on securing new employment.  He had also been shortlisted for a public position on 11th November 2023.  It was confirmed that his gross loss of earnings for the 15-week period that he had been unemployed was circa €8,500.

Cross-Examination of the Complainant

The Complainant accepted that he had been medically certified as being fit to return to work on 5th September 2023.  He maintained that his loss of trust solely pertained to Mr A.  He confirmed that he had no personal issues with any of the staff who had processed his grievances.  His references to having lost trust and confidence in Mr A had been solely predicated upon Mr A’s actions.  He was asked whether it was reasonable to require prior notice for routine meetings with his Line Manager.  He maintained that he was entitled to know the purpose of unscheduled meetings beforehand so that he could incorporate them into his scheduled activities.  Owing to the continued misalignment between Mr A’s verbal and written instructions, he had requested that all communications be put in writing so that there was no ambiguity and he could continue working without stress.  This was in circumstances where the quality of his work had not been in question.  He had been prepared to take instructions and in fact had moved over to emails when requested on 22nd June 2023.  He was asked whether he had enjoyed a normal working relationship with Mr A.  He said he could not define what was normal and at the time he was “not in a good mental state”.  The fact that he was certified as medically fit to work did not mean that he was not stressed. 

It was put to the Complainant that the invitation to the meeting to discuss his loss of trust and his employment was unambiguous in terms of flagging that his job was at risk.  He refused to accept this proposition because there had been no previous indications that his job was at risk.  He had also been under stress.  Additionally, he was not qualified in employment law and did not fully understand the issue to be discussed.  He maintained that his loss of trust pertained to Mr A and was not a mutual loss of trust with the Respondent.  He was asked why he had refused to meet the Head of Buyer Experience when his job was on the line and she had reached out to him twice.  He maintained that he was not in the right state of mind to make a decision as to whether he should attend.  He accepted that he was afforded the opportunity of bringing a colleague to the meeting.  He accepted that he had been afforded the right to put forward his version of events in writing.  He was asked whether on reflection, he had contributed to the termination of his employment.  He replied that at the time he did not consider that he had contributed to his termination owing to his state of mind.  He had been reluctant to avail of medication as he did not want to jeopardise his employment but after his termination, he went on strong anti-depressant medication. 

The Complainant denied that he had abused internal grievance procedures.  He maintained that he did not have many grievances.  He did not accept the outcomes of the grievances.  He did not avail of mediation as he had understood that once he had embarked on a formal process, he could not avail of same.  He did not accept that he had been afforded a proper appeals process.  In particular, the outcome was based upon information that had not been put to him to get his side of the story.  In this respect, it was put to him that it was based upon correspondence which he had furnished.  He accepted that he had not provided a medical confirming his mental health condition at the time.  This Adjudication Officer asked him whether his submission of lengthy grievances and his tone and use of language in emails including the use of capital letters could have contributed to his situation.  He agreed that based upon where he was now as opposed to at the time, he could see how an issue could have been taken with his emails.  He did not consider his request for communications to be recorded or in writing unreasonable given his state of mind at the time.

Complainant’s Legal Submissions regarding Complaint under the Protected Disclosures Act 2014

In respect of the complaint under Schedule 2 of the Protected Disclosures Act 2014 (amended), the Complainant contends that he had initially raised various queries at work informally with HR which he then progressed formally.  Thereafter, he started to observe behaviour from colleagues that was not in line with company policy and actions were taken that did not comply with the Respondent’s standards of operation or general practice.  When he took issue, he was treated differently compared to other individuals in the same situation.  In particular, he was isolated, subjected to verbal counselling and summarily dismissed. 

The Complainant relied upon Section 5(8) of the Protected Disclosures Act 2014 (as amended) providing that where there is “an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”  The Complainant further enjoys a presumption provided by Section 21 of the Protected Disclosures (Amendment) Act 2022 amending the Principal Act, that penalisation will be deemed to have occurred as a result of the making of a protected disclosure unless an employer can show that the act or omission was duly justified.  In Conway-v- The Department of Agriculture, Food & the Marine [2020] IEHC 665, Hyland J. addressed the question of what constitutes a “detriment” for the purposes of a claim of penalisation under the Protected Disclosures Act 2014.  She concluded that the ordinary meaning of detriment connotes “harm or damage” and that “an unjustified sense of grievance cannot amount to a detriment”.  In Clarke -v- CGI Food Services [2020] 3 IR 389 where it had been alleged that a disciplinary process had been initiated by way of detriment following the making of a protected disclosure, Humphreys J. observed: “The employer claims that the dismissal of the plaintiff was due to performance issues, but it is also clear that the complaint about performance only began after the plaintiff started raising awkward questions.  Unfortunately, it is not difficult to “performance manage” someone out of a job.  Such a process is manipulative, of course, and insofar as it impacts on an employee’s wellbeing it is bullying and abusive; but decision-makers have to be alive as to how relatively easy it is to remove somebody from a position for ostensibly plausible reasons.  On the other side of the equation, it is possible for someone who is dismissed for legitimate reasons to claim that removal was due to some improper purpose, or to characterise the imposition of legitimately high standards as the infliction of stress and bullying.  The upshot really is that the court must look beyond mere face value on either side.” 

In the Court of Appeal Judgement of Barrett -v- Commissioner of An Garda Siochana [2023] IECA 112, Ní Raifeartaigh J. addressed “the nexus or connection between the alleged protected disclosure and the alleged detriment suffered”.  She reviewed the English caselaw on detriment and endorsed Humphreys J.’s “succinct but incisive judgment” as follows: “I agree with Humphreys J. that a court dealing with an alleged connection between a protected disclosure and subsequent disciplinary action must be alive to the possibility that there may be motivations on the part of the employer which are hidden and not obvious at first sight.  A court should look not only for obvious or explicit connections between protected disclosures and subsequent events, but should draw such inferences as may be appropriate from all of the evidence.  At the interlocutory stage, this involves doing so to the appropriate standard of proof.  However, I also agree with Humphreys J. when he says that on the other side of the equation, it is possible for someone who was dismissed for legitimate reasons to claim that removal was due to some improper purpose, and that a court should be careful to look at the matter from all angles.”  It was accepted on behalf of the Complainant that if the two issues raised were found not to constitute protected disclosures within the meaning of the Protected Disclosures Act 2014 (as amended), then it is unnecessary to proceed to consider penalisation. 

Complainant’s Legal Submissions regarding Complaint of Unfair Dismissal under the Unfair Dismissal Acts

It is common case that the Complainant’s employment was terminated with pay in lieu of notice on 22nd September 2023.  In relation to the complaint of unfair dismissal simpliciter under Section 6(1) of the Unfair Dismissals Act 1977 (as amended) as set out in the findings hereunder, it was submitted that he had effectively been dismissed owing to a culmination of his ongoing grievances and the time and costs associated with processing same.  The Act provides that a dismissal is unfair unless there are substantial ground/s justifying the dismissal.  The WRC and the former Employment Appeals Tribunal (EAT) have consistently held that the determination of whether an employer has proven the existence of substantial ground/s for justifying a dismissal should be assessed using the objective standard of how a reasonable employer under the same circumstances and within that line of business, would have acted.  It was submitted that in the instant case, no substantial ground existed for the Complainant’s dismissal.

It was further submitted that although the Complainant had not been found guilty of gross misconduct, he had not been afforded any procedural safeguards prior to his dismissal.  A decision to dismiss an employee must be conducted in accordance with fair procedures and natural justice derived from the Constitution and the European Convention on Human Rights as elaborated on by the Courts through case law.  Reliance was placed upon the Supreme Court Judgement in Re: Haughey (1971) I.R. 217 as the starting point where Article 40.3 of the Constitution was interpreted as encompassing a guarantee of fair procedures for all citizens.  Consequently, in any proceedings where a person’s conduct is impugned, that person must be afforded a reasonable opportunity to defend themselves.  This includes being furnished with a copy of the evidence against them; being allowed to cross-examine the accuser/s; being allowed to give rebutting evidence; and being permitted to address the body concerned in their defence.  Reliance was also placed upon S.I. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), providing best practice for employers in the conduct of grievance and disciplinary procedures.

The Complainant contends that he has suffered significant financial and reputational damage as a consequence of the termination of his employment, as well as considerable stress and anxiety.  In determining the relevant redress under Section 7(1) of the Act, it was submitted that ‘just and equitable’ implies a consideration, not only of any loss of earnings, but of other financial losses incurred by the breach of employment rights, a consideration of the stress and emotional toll of being in dispute with the Respondent, the legal fees incurred in pursuing complaints before the WRC, the personal and professional reputational consequences suffered, the impact of the infringement on any future career prospects, the financial position of the Respondent and the requirement of the WRC to ensure that any compensation payable is effective, proportionate and dissuasive as per Case 14/83 von Colson and Kamann -v- Land Nordrhein-Westfalen [1984] ECR 1891 & 79/83 Dorit Harz -v- Deutsche Tradax GmbH [1984] ECR 1921.

Summary of Respondent’s Case:

Direct Evidence of Mr A, Team Leader and the Complainant’s Line Manager

Mr A confirmed that he had eleven years’ service with the Respondent with seven years’ experience as a Team Leader.  In 2022-23, he had managed two remote teams, each team comprising of eight employees.  The Complainant had worked within one of these teams.  Mr A’s relationship with the Complainant had been uneventful until February 2023 when he had become his direct Line Manager and the Complainant had raised issues with his lack of promotion.  This had predated the alleged protected disclosures being made herein.  The Complainant had raised numerous grievances against Mr A and other team members. 

Mr A explained that the Respondent’s promotion process comprised of three rating levels, a lower rating, an on-target rating and a higher rating.  It was his responsibility to evaluate employees within his teams for promotion based upon numerous factors including their alignment with the Respondent’s culture and DNA and not just statistical performance.  Whilst it was within his remit to propose a team member for promotion, approval was made by higher management.  The proposed promotion goes through a management chain for approval and at any stage of the process, might be discontinued.  Mr A had appraised the Complainant in 2022 as having an on-target rating meaning that he was doing a good job.  However, there were issues preventing a higher rating.  In particular, Mr A had raised the Complainant’s use of tone and language in his communications with his teammates, stakeholders and customers with him. 

Mr A refuted the Complainant’s numerous allegations about him in grievances to HR including that he had overlooked him for promotion whilst supporting Ms C’s promotion.  Mr A also refuted the Complainant’s contention that he had refused to hold one-to-one meetings with him and had been available for all but two meetings on a list which the Complainant had submitted to HR as being missed.  He also operates an open-door policy and had always been available to talk to the Complainant.  Mr A confirmed that the fact that email duties scored lower was factored in and as such, the Complainant could have achieved a relatively higher scoring through email duties.  Weekly rosters were compiled to rotate the various tasks across the team so that everyone was treated equally.  Mr A recalled facilitating a prior request from the Complainant to be taken off emails owing to a sore throat.  He did not recall any occasions when the Complainant had reported being overburdened and stressed with work.  In relation to the incident on 22nd June 2023, when the Complainant had been asked to come onto emails, Mr A recalled him saying that he had other tasks to get done but at the time, the team had been under pressure to revert to customers.

Mr A confirmed that on 1st August 2023, the Complainant had been issued with verbal counselling by a Temporary Operations Manager as set out in the findings below.  He explained that verbal counselling is the informal part of the Respondent’s Performance and Corrective Action Policy and is issued to allow an employee the opportunity to come into compliance with company policy and also to set expectations going forward.  The Complainant was issued with verbal counselling in respect of (i) his refusal to work on emails when requested by Mr A, (ii) the Complainant’s interactions with Ms C [who had raised a complaint about him with the People Experience Team on 14th July 2023 but subsequently agreed to have the matter dealt with informally by management] and (iii) the Complainant’s refusal to accept suggestions by Mr A on his coaching plan, originally made by his Superior to help the Complainant achieve his stated desire for promotion.  The Complainant had written to the Temporary Operations Manager notifying him that he did not accept the verbal counselling that had issued to him as he had ongoing grievances in motion.  In a lengthy email dated 1st August 2023 to Mr A, the Complainant had contended that the issues giving rise to verbal counselling amounted to a protected disclosure.  Mr A had responded to the Complainant on 4th August 2023 to confirm the Respondent’s position that concerns which relate to an employee’s personal terms and conditions of employment, working procedures or conditions do not fall within the scope of a protected disclosure under Section 5(3) of the Protected Disclosures Act 2014 (as amended).  On 3rd and 7th August 2023, the Complainant had issued further emails to Mr A setting out a litany of issues, alleging retaliation and asserting that verbal counselling could not be issued whilst his grievances were pending. 

It was further outlined in written submissions that having returned from sick-leave on 4th September 2023, the Complainant had failed to meet with Mr A when requested on 5th September 2023.  This was for return-to-work verbal counselling.  Mr A had informed him that he expected him to meet when required.  The Complainant sent a detailed email to Mr A on the same date which he considered was inappropriate in tone including the extensive use of capital letters.  Amongst repeated complaints about Mr A’s treatment of him, the Complainant stated: “I am in no way, shape or form refusing to continue communication but I would like to make it very clear that I have lost full trust in my leadership and would ask that all communication be in written form…  I am not intending to insult you or be confrontational - I am legally obliged to notify you I have lost full trust and to express my concerns which is the act of this notification.  I am also in the process of requesting change in leadership and transfer to another department…  In summary - my request is based on the lack of faith and trust in the communication with me and the only solution to that is to have full transparency which can only be accomplished in written form and my want is to defend myself in future reference and to ensure the accurate information is available to all Parties involved.”  The Complainant sent a second email to Mr A on 6th September 2023 stating: “Please note I have not been given any notification or intent to highlight any disciplinary action is being considered against me and you have not specified what is the meeting format entails at any point in time and in light of the communication I have had yesterday where I outlined my loss in complete trust in my leadership I fail to see how you have concluded this statement that I am refusing to attend any mandatory meetings?  This only further supports my concerns of mismatch in what is being attempted to be done/said in verbal versus what ends up in written form!  You have not notified me of any verbal counselling intent!...  I do not understand what is not clear about my statement that I have lost all trust in my leadership due to continued mismatches in verbal discussions versus written statements which is why I have insisted on written form communications to avoid any ambiguity or misinterpretations.  This written form of communication has no concern for me and I do not understand what is so concerning or unreasonable given the fact I have lost trust in leadership for you to deem me as refusing to communicate?  I have not refused to communicate.  ONCE AGAIN - I find this as psychological warfare against me in light of the fact you did not disclose the format of the UNSCHEDULED zoom meeting you attempted to insert that conflicted with my scheduled training period and work duties.  I insist you cease such activity of underhanded disciplinary action against me when you are not disclosing any purpose for unscheduled and unplanned meetings…  You are only notifying me of your intent to proceed with verbal consultation for my absence TODAY in written form!  Whether you accept or do not accept it – My opinion is not to carry out unreasonable meetings that are unscheduled and not disclosed in advance which can be speculated down the road on since they’re not recorded.” 

Notwithstanding a letter from the Respondent of 8th September 2023 attempting to address all of the Complainant’s issues, on 10th September 2023, he sent a further lengthy email to Mr A copied to HR insisting that all communications between them be in writing whilst his grievances were under appeal and stating: “I state that given the nature and created situation between me and you, where I am not at fault for its current status and I have lost full trust and confidence in my line manager, that if the verbal meetings continue in future this will create instances where full transparency would not be available and speculative statements or responses will be applied that would not allow me to properly defend my stance and exercise my rights as proven by the past historical review of our interactions so far.”  The Complainant further expressed concerns about the impact of the situation upon his performance.  Thereafter, a process ensued leading to the termination of the Complainant’s employment, in respect of which Mr A had no involvement.

Mr A had been asked whether he was open to mediation with the Complainant to resolve matters.  He confirmed that he had been open to mediation but the Complainant had declined as was his entitlement.  He said that in all his seven years as a Team Leader, the Complainant was the only employee to request that all communications be put in writing.  The deterioration in their relationship had impacted on the team dynamic and members of the team had emailed Mr A with their concerns.  It had reached a point where Mr A had felt that the Complainant had become unmanageable.  It had been a very difficult time for Mr A causing him to doubt his own ability as a Team Leader and had also adversely impacted on his wellbeing. 

Cross-Examination of Mr A, Team Leader and the Complainant’s Line Manager

Mr A confirmed that he had first become aware of the Complainant’s request to be transferred to another department towards the very end of his employment.  He had neither approved nor prevented it.  He did not agree that in hindsight it would have been better to have permitted the Complainant’s transfer.  It would have created a precedent opening up a “can of worms” and had not been his decision to make.

Direct Evidence of Operations Manager 1 – Investigated Complainant’s First Grievance

Operations Manager 1 was appointed to deal with the Complainant’s first formal grievance against Mr A on 5th April 2023 in relation to his 2022 performance rating and the fact that he had not been promoted when another member of the team had.  This grievance was 17 pages long and was supplemented with additional emails and submissions.  Although Operations Manager 1 knew the Complainant, they had not had any recent interactions and as such he was independent.  The Complainant had attributed his lack of promotion to “unfair treatment and personal feelings from management when assessing factors for promotion” and “discrimination – whether direct or indirect” against him by management for having an “emotional disability”.  Rather than being assessed for his “capabilities, knowledge and experience” throughout 2022, he had been subject to “negative sentiments and insinuations” based upon “personal opinions and feelings from my direct leadership.”  The Complainant’s grievance was embedded with numerous communications with Mr A as examples of what he regarded as unjustified criticisms.  In particular, he included a tetchy exchange with Mr A on 23rd March 2023 when he had not made himself available on chat when instructed.  He had also objected to Mr A’s criticism of his communication style and being described as ‘robotic’ and as lacking empathy.  He contended that he had been… “persecuted for doing my work and being accused of ignoring instructions while at work as what is suspect and speculate as backlash?  I was even threatened with next steps for HR during the demanded Zoom meeting by my manager that I asked to be recorded.”  The Complainant also set out his “proven track record for 2022”, chronologically detailing his numerous accomplishments on behalf of the Respondent.  He further complained that he had not been afforded formal training on communications despite requesting such training.  Operations Manager 1 confirmed that following a thorough investigation and having considered all of the evidence and relevant documentation, he did not uphold these grievances as set out in a detailed outcome letter of 3rd May 2023.  However, he recommended that managers undergo training in relation to the delivery of feedback to team members and that all team members undergo training in relation to the appropriate tone within communications.  None of his evidence was challenged by way of cross-examination on behalf of the Complainant.

Direct Evidence of Operations Manager 2 – Conducted First Grievance Appeal

The Complainant availed of his right to appeal this outcome and on 10th May 2023, submitted eight grounds of appeal along with appendices.  The appeal document was lengthy and written in a highly combative tone including assertions that the Respondent had breached the Complainant’s rights under the Employment Equality Act.  Operations Manager 2 was an independent Senior Manager appointed to deal with this appeal.  Whilst she had met the Complainant once remotely, she did not know him and as such was independent.  On 23rd June 2023, accompanied by a People Expert, she had met with the Complainant remotely.  Having thoroughly investigated all the grounds of appeal, she had not found any new evidence to overturn the original investigation outcome.  In particular, the Complainant had not identified any disability within the meaning of the Employment Equality Act.  He had also raised a vast array of new issues against Mr A and other Supervisors alleging unfair treatment against him in a 22-page email of 26th June 2023.  Numerous communications between the Complainant and Mr A and Mr C were embedded within this email and attached as appendices in support of his complaints.  These included the GDPR breach issue and the incident of 22nd June 2023 whereby the Complainant had declined Mr A’s instruction to move to emails.  Mr A had also written to the Complainant about his communications with Ms B referring to same as being disrespectful.  On 28th June 2023, the People Experience Team advised him that these new issues were outside the scope of the original grievance and would therefore be dealt with separately.  On the same date, Operations Manager 2 had notified the Complainant that the appeal of his original grievance outcome had not been upheld.  The appeal outcome letter comprehensively addressed each ground of appeal raised.  Regarding a requirement by the Complainant that all his meetings be recorded, Operations Manager 2 concluded that this had been reasonably refused as not being in line with the Respondent’s practice.  None of her evidence was challenged by way of cross-examination on behalf of the Complainant.

Direct Evidence of Employee Relations Business Partner – Recommended Mediation

The Employee Relations Business Partner was appointed to address the Complainant’s second set of grievances of 26th June 2023.  He had contacted the Complainant on 6th July 2023 and on 7th July 2023, the Complainant had requested that their meeting be recorded.  The Employee Relations Business Partner had declined on the basis that this was not in line with Company practice.  He held a remote meeting with the Complainant on 13th July 2023, exploring whether he would be open to mediation with Mr A as an opportunity to resolve his grievances.  He had explained the purpose of mediation and what it entailed.  The Complainant’s response had been “No”.  Following the meeting, the Complainant had sent the Employee Relations Business Partner an email complaining that his multiple requests to have the meeting recorded had been declined and containing a screenshot of him on the call with the following wording: “This is proof of attendance via Zoom for all attending parties where I was refused the recording… Disclaimer - The image is used as reference or proof of attendance with date and timestamp - it is not being shared or disseminated and I have notified the People Experience representative that I will be sending this in written form during the brief meeting to which I received no objections and it is deemed as fair use.”  The Complainant also confirmed that he had declined mediation and wanted his grievances to be dealt with formally.  This screenshot had been taken without the Employee Relations Business Partner’s knowledge or consent which he addressed in an email of 19th July 2023 to the Complainant.  Whilst disappointed with his actions, he did not pursue disciplinary action.  He also confirmed that as the Complainant did not wish to attend meetings which were not recorded, the Respondent would correspond with him in writing going forward.  He further agreed to review the handbag destruction issue.  The Complainant had responded with further emails of 19th July and 1st, 3rd and 7th of August 2023 complaining about the approach being taken in relation to his grievances.  On 8th September 2023, the Employee Relations Business Partner issued a comprehensive response to the Complainant addressing each of his grievances to date (whilst leaving aside his emails to Mr A of 5th & 6th September 2023) and did not uphold same.  Prior to that, on 4th September 2023, the Complainant had made an ethics complaint against the Employee Relations Business Partner.  He accused him of impeding his grievances and withholding and selectively accepting information leading to erroneous findings.  Under the Company Policy, ethics complaints are investigated by an Ethics Team independently of the People Experience Team.  They investigated this complaint and did not uphold it.

Cross-Examination of Employee Relations Business Partner

The Employee Relations Business Partner was asked whether he recommended mediation in all cases.  He replied that it depended upon the nature of the grievance but in most cases mediation was recommended.  He confirmed that he had advised Mr A that mediation was not going ahead.  In the absence of informal resolution, he had referred the grievance back to a Senior Director to have it formally investigated.

Direct Evidence of Head of Commercial Operations – Investigated Complainant’s Second Grievance

The Head of Commercial Operations confirmed that he had been appointed to formally investigate the Complainant’s second set of grievances.  He had agreed to include additional issues raised by the Complainant in the interim including the handbag destruction issue.  He had not known the Complainant previously.  He firstly addressed the Complainant’s contention that he had not been independent owing to a prior interaction with Mr A regarding the handling of a consignment of runners.  He clarified that as the runners in question could not be authenticated, they had been raffled for charity which Mr A had facilitated and accordingly, nothing improper arose.  He confirmed that the Complainant had declined to meet in person to discuss his grievances stating that he wanted to deal with the matter in writing.  Having investigated the matter fully including obtaining the accounts of Mr A and Ms B and reviewing all of the evidence, he had issued a lengthy outcome letter on 10th August 2023 finding (1) no basis for the Complainant’s contention that Mr A had been avoiding one-to-one meetings with him; (2) that there was nothing untoward about the interactions between Ms B and the Complainant; (3) that there was nothing irregular about the verbal counselling given to the Complainant in relation to his communications; (4) that there was no issue with the request to the Complainant to move on to emails given that it was a standard requirement for team members to move between tasks depending upon the pressure points; (5) that there was no basis for the Complainant’s claim that this had impacted upon his performance statistics and (6) he noted that the Complainant’s main objection to dealing with the handbag issue was that it would “sabotage” his performance statistics and accordingly, his financial standing.  He found that there was nothing irregular about the disposal of the handbag.  In conclusion, he noted the deteriorating relationship between the Complainant and Mr A and strongly recommended that the Complainant revisit mediation as the best way of moving forward.  He also advised him to “reflect on some of the aspects of eBay’s DNA and in particular that we act with integrity and that we believe that people are basically good.  I suggest that you consider this in your interactions with Mr A and not immediately assume that there is an ulterior motive to every ask that Mr A makes.”  The Complainant appealed these findings on 7th September 2023.

Cross-Examination of Head of Commercial Operations

The Head of Commercial Operations confirmed that he had fifteen years’ experience with the Respondent.  He was asked whether he had sought any additional information in relation to the Complainant’s grievances.  He confirmed that as there had been a request by the Complainant to have his grievances handled via email only, he had communicated with the People Experience Team to obtain the evidence he required.  He was asked what team-building the Respondent provides for exclusively remote workers.  He replied that the Respondent is regarded as a market leader in remote working, being one of the first companies to launch remote working in Ireland prior to the Covid-19 Pandemic.  Although it offers office-based and hybrid working arrangements, 80% of its workforce opt for fully remote working.  The Respondent is a member of the Grow Remote Committee and networks with other companies to share expertise and has SOP’s on building team connections.  There are regular team ‘huddles’, one-to-one and team meetings, remote and in-person fundraising and social events and talks including on health and well-being.  He was asked whether he should have picked up the phone and spoken to the Complainant.  He replied that it was not the preferred option in the instant case given the request for offline communication. 

Direct Evidence of Head of Buyer Experience – Investigated Handbag Destruction Issue, Second Grievance Appeal and Trust & Confidence Issue leading to the Termination of the Complainant’s Employment

The Head of Buyer Experience confirmed that she had been employed with the Respondent for twenty years.  She had not known the Complainant beforehand.  She gave evidence in relation to her dealings with the Complainant relating to these complaints.  At different stages, she had been appointed by HR to hear his grievances including an appeal from his second set of grievances and to examine whether trust and confidence had broken down between the Parties.  Regarding the GDPR breach issue, she confirmed that test accounts with third party couriers such as the one subject to this complaint are created as a matter of course and login details are shared with staff to ensure that they are working properly.  She did not consider there to be anything untoward about the request to the Complainant to provide the login details.  He had not been disciplined for his refusal of this request.  Regarding the handbag destruction issue, she had been satisfied that there had been numerous attempts to return an undelivered handbag to the seller with notice that it would be destroyed without any entitlement to a refund if the seller did not revert by a certain date.  The handbag had been assessed and deemed so damaged by mould that it was unsuitable for resale.  When the seller eventually reverted, no complaint or claim had been made.  Accordingly, she found no wrongdoing and the only minor shortcoming noted was the absence of a record of this on the system.  She confirmed that she had issued a detailed outcome letter to the Complainant on 22nd September 2023, comprehensively addressing his appeal against the second set of grievances and finding no basis for upholding same.  She had also issued his termination letter later on the same date as set out hereunder. 

The Head of Buyer Experience was further asked to consider whether there had been a breakdown in trust and confidence between the Parties arising from the Complainant’s emails to Mr A in early September 2023.  On 11th September 2023, the People Experience Team wrote to the Complainant inviting him to attend a meeting as follows: “We refer to your emails of 5 and 6  September 2023.  We have serious concerns in relation to some of the language used in your emails to your manager on 5 and 6 September 2023.  On multiple occasions you express that you have “no trust in my leadership”, “lost trust in leadership” and have indicated that you find this “psychological warfare”.  Employment law recognises the value of trust and confidence being present by both parties in an employment relationship.  If trust and confidence between an employer and employee has been irreparably broken, the relationship may be at an end.  We would like to meet with you on Wednesday at 1pm via Zoom…”  The email listed the members of the People Experience Team who would be present before continuing: “The purpose of this meeting is to discuss the contents of your emails of 5 and 6 September and whether the employment relationship between you and the Company has irretrievably broken down.  You should be aware that if so determined, the Company may consider the termination of your employment on that basis.  However, before making any decision, the Company wishes to hear your version of events and at the meeting you will be given the opportunity to respond to the Company’s concerns.  If you do not wish to attend in person, you can provide your response in writing by email… which should be received prior to the time and date of the meeting as set out above.  If you wish you may be accompanied at the hearing by a work colleague.”  The Complainant responded requesting more time which he was afforded but ultimately he did not attend the meeting or seek a further date.  On 12th September 2023, he had sought confirmation of whether the process was a disciplinary process and referenced such requirements in the Corrective Action Policy.  On 14th September 2023, he raised a further grievance about the grievance procedure adopted to date.  In an email of 15th September 2023, he outlined his employment history which he regarded as progressing well until Mr A had become his Line Manager when it deteriorated.  He listed nine points relating to his lack of promotion and loss of trust in Mr A.  He insisted that his lack of trust pertained only to Mr A’s leadership and not to the Respondent.

The Head of Buyer Experience confirmed that her preference would have been to have met the Complainant in person to get an understanding of what was going on for him.  However, as he had declined a meeting, she was confined to a review of all of the documentation.  Having considered all of his submissions, on 22nd September 2023, she issued a lengthy letter terminating the Complainant’s employment on the basis that trust and confidence had irrevocably broken down between the Parties.  The letter commenced with stating: “I have been asked to consider whether trust and confidence between you and eBay has been irrevocably broken and if so, should your employment continue.  It is important to note that you are not being accused of misconduct or poor performance.  Instead, the question is whether, by your actions, mutual trust and confidence has been lost (including your trust and confidence in eBay) thereby rendering the employment relationship unsustainable.”  The letter then set out in detail the breakdown of the Complainant’s relationship with Mr A arising from his lack of promotion as follows: “It is clear from your e-mails that you have major issues with your line manager, Mr A.  This relationship cannot be characterised as normal, and it is continuing to deteriorate as (i) you insist that all communication between you and him be in writing (in fact this request has also been made in relation to your interactions with HR), (ii) you will not attend meetings with him unless it is on your terms, and (iii) many requests from Mr A are met with a lengthy response back, also expressing your lack of trust in his leadership.  Your recent emails do not contest this point.’’  The Head of Buyer Experience regarded the source of the Complainant’s issues with Mr A to stem from the promotion of Ms C in February 2023 and his strong sense of personal injustice in relation to the failure to promote him.  She referred to his refusal to accept the outcome of any of the grievance processes and appeals from same (including the finding of no wrongdoing by Mr A in relation to his lack of promotion).  She referred to his refusal to engage in mediation which may have resolved the situation and his insistence on all communications being in writing noting: “What appear to be normal day-to-day issues are now the subject matter of a number of on-going grievances and lengthy e-mail correspondence with a high degree of repetition.”  She also considered the effects of his behaviour: “For example, (1) several managers have been asked to review grievances and appeals where you have showed no willingness to accept the outcome unless they are in your favour and (ii) significant company resources are being dedicated to dealing with your issues from HR, Ethics to Legal, with little prospect that this will cease; and (iii) I have concerns this situation is starting to affect adversely the morale of the wider team.”

The Head of Buyer Experience further pointed out that the Complainant’s issues were not confined to Mr A as he displayed a similar level of dislike to Ms C who had been acting on the instructions of Mr A following her promotion.  She expressed concern at the Complainant’s use of the Ethics Complaints Process to make unsubstantiated serious allegations against the Employee Relations Business Partner.  She expressed the view that transfer to another department was not a viable option in the particular circumstances where the Complainant’s concerns against Mr A had not been upheld and the likelihood of similar behaviour arising,which would not be fair to other managers or teams.  She referenced the Complainant’s expression that some sort of “psychological warfare” is being used against him as indicating “a mindset where any hope of a compromise or a resolution is unlikely.”  She further stated that whilst the Respondent has no issue with employees raising grievances in accordance with its policies and processes, “… it seems that you are no longer satisfied with any decision which is going against you and you are actively searching for situations to raise new grievances or complaints as a tactic in the “war” you perceive exists between you and eBay.  Whilst you may wish to continue this game of “warfare”, indefinitely through e-mail and use of HR policies, I cannot see why your employment should continue while you do so.  It seems to me that the situation has significantly deteriorated in recent months and weeks.”  The letter then concluded: “The way you express yourself in emails I consider also inappropriate in a number of cases.  This is not stated in terms of a disciplinary matter, but just as further evidence of the breakdown in the relationship – and that you consider it appropriate to communicate in such terms as a result.  There are many such examples, such as you writing in capital letters and stating you “insist” on certain actions.  Taking all the circumstances into account, including the points raised in your emails, I do regrettably consider that you no longer have trust and confidence in eBay and that the mutual trust and confidence is irretrievably broken down.  Again with regret, I therefore consider that your employment be terminated.  As this is not a misconduct termination, I consider you should be entitled to your contractual one month’s notice.”  HR also wrote to the Complainant on the same date, confirming the arrangements for the return of his work equipment and statutory payments including pay in lieu of notice and provided: “If you wish to appeal against this decision, you may do so under the Appeals procedure outlined in the Company Performance and Corrective Action Policy.”

In direct evidence, the Head of Buyer Experience contended that it had simply become impossible for the Respondent to work with and manage the Complainant.  It had been clear from the correspondence from the Complainant mentioning multiple times that he had no trust in Mr A or his leadership, that the employment relationship had irrevocably broken down.  She had been aware that Mr A had been very stressed by the daily emails / issues from the Complainant which flowed into the team adversely impacting upon same.  This in turn had given rise to multiple complaints about the working environment.  She had felt that it was the best decision for all concerned to terminate the Complainant’s employment.  She confirmed her view that the Complainant’s issues had all stemmed from his grievance about his lack of promotion which had gradually built up and escalated.  She reiterated for the record that the Complainant had not been dismissed for gross / misconduct or for his misuse of grievance procedures.  She added that ultimately the decision had arisen from the complete breakdown in communications and the fact that the Respondent could not access the Complainant unless in written form and that is not how the Respondent operates.

Cross-Examination of Head of Buyer Experience

The Head of Buyer Experience confirmed that whilst she had not personally examined the handbag subject to the handbag destruction issue, it had been thoroughly examined and photographed by a team of trained authenticators.  Regarding the GDPR breach issue, she was asked whether she had any evidence of prior requests for test accounts and said that she could provide same if required.  The Head of Buyer Experience was asked whether she had been aware that the Complainant had just returned from stress-related sick leave on 4th September 2023 and might have been a bit delicate.  She confirmed that she had been aware of the situation and had taken this into consideration.  She was asked whether it had been appropriate to dismiss the Complainant approximately 17 days later.  She replied that as the Complainant had mentioned being stressed by the process multiple times, she had felt that it was not in his best interests to prolong it.  She confirmed that her letter terminating his employment had issued shortly after the contemporaneous letter declining the Complainant’s grievance appeal on the same date.  She accepted that there had not been any mention of any complaints by other members of the team in her letter and explained that this was because they were confidential.  She rejected the proposition that the Complainant’s communications had been misconstrued.  She accepted that there had been no issues with his work upon his return.  She was asked whether it would have been fair to have waited to see how he got on and then tried to resolve matters.  She replied that every avenue had been exhausted.  She agreed that there had been multiple requests for a transfer.  She was asked whether hybrid working or a transfer had been considered.  She confirmed that the Respondent transfers employees if there is a business need.  She was not aware of the position if there was a personal need but accepted that a transfer could be granted exceptionally.  She confirmed that the Respondent receives requests for transfers every day for multiple reasons and the Complainant’s request could not be facilitated in the particular circumstances.  She had wanted to speak to him in person to understand his position but that had not been possible.  She had been unaware that the training sought by the Complainant since 2022 was communication training.  She had met him twice previously during the course of their interactions.  She rejected the contention that when he had declined two meetings following his return to work from stress-related leave, she had decided to dismiss him. 

In response to questions from this Adjudication Officer, the Head of Buyer Experience confirmed that she did not have HR or legal expertise and had relied upon HR for guidance.  She was asked whether it would have been more prudent to deal with her concerns about the tone of the Complainant’s communications on a staged basis via the disciplinary process i.e. for insubordination utilising the various warnings before considering dismissal as a final resort.  She replied that if this had been an isolated event, that might have been appropriate, but because there was so much going on at the time she did not feel the need to escalate the matter any further.  She had also been dealing with the second grievance appeal and at that stage there were so many conversations between the Complainant and staff involved “that it was past that point”.  She was unaware of the existence of any employment contract clause or policy providing for the termination of employment on the basis of a breakdown in trust and confidence between the Parties.

Direct Evidence of Global Director for Learning, Coaching & Quality – Appeal against Termination

The Complainant had submitted an appeal against the decision to terminate his employment to HR stating: ‘’I am outlining that I was dismissed without cause, due process and fair procedure.”  The Global Director for Learning, Coaching & Quality was appointed to hear the appeal.  She had not known the Complainant beforehand and as such was independent.  She confirmed that the Complainant had not been offered a meeting as he had refused to meet the decision-makers in the process to date and had requested the matter to be dealt with in writing.  It was also noted that the Corrective Action Policy only provided for a paper appeal in any event.  She had undertaken a thorough review of the Complainant’s termination and all of the surrounding documentation and found no basis to overturn the decision of the Head of Buyer Experience.  She had issued a detailed outcome letter on 18th October 2023 under three headings.  Firstly, she set out all of the steps followed in the process and found that due process and fair procedures had been followed.  Secondly, she found that the Complainant had not been summarily dismissed as contended (noting that this issue was not being pursued within this complaint in circumstances where he had been paid in lieu of notice).  Finally, she had found that the Complainant had not been dismissed for gross misconduct or poor performance and had been “dismissedfor mutual trust and confidence breakdown.” 

Cross-Examination of Global Director for Learning, Coaching & Quality

The Global Director for Learning, Coaching & Quality confirmed that she had been appointed by the People Experience Team to deal with the Complainant’s appeal against the termination of his employment.  She confirmed that she had dealt with a number of similar appeals, the last one being seven years previously.  Whilst she had leadership training she did not have formal HR training and engaged with HR for support.  In particular, she had meetings with the Industrial Relations Manager who had oversight of the Complainant’s grievance and termination processes, asked questions of her and received materials from her.  She did not accept that a lack of independence and bias arose from such interactions or that this was not in compliance with fair procedures.  She was asked what due process she had afforded the Complainant.  She stated that her role was to review all of the documentation to identify “…if I was in adherence with all of the decisions that were made and as a manager of multiple managers I would have done the exact same as each manager had conducted in this instance.”  She had not contacted the Complainant owing to the breakdown in communication.  She accepted that the Complainant had the right to be heard yet contended that he had been afforded the right to be heard.  She was asked whether it would have been objectively reasonable to contact him.  She replied that given that he had declined to be heard in person to date, she did not feel that this would have been the appropriate course.  It was put to her that reviewing a decision to dismiss was a serious matter.  She was asked how she could have got the Complainant’s input and a fair understanding of everything without meeting him.  She replied that she had read through every single email and was able to infer from the documentation where the breach of trust and breakdown between the Parties had occurred.  Finally, she was asked whether a staged disciplinary process would have been more in keeping with fair procedures given the Respondent’s concerns about the Complainant’s use of language.  She replied that in circumstances where the Complainant had declined a number of requests for mediation, the decision to dismiss by the Head of Buyer Experience had been the correct next step and she had upheld that decision.

Direct Evidence of the Industrial Relations Manager – Oversight of Grievance and Termination Processes

The Industrial Relations Manager had oversight of the Complainant’s grievance and termination processes.  She has a Diploma in Employment Law.  Firstly she explained that verbal counselling is essentially a follow-up email in respect of a conversation between an employee and their manager regarding minor issues arising such as absence or performance issues.  It is an informal process and does not constitute a disciplinary sanction or impact upon an employee’s promotion.  She confirmed that she provided HR support to both the Head of Buyer Experience and the Global Director for Learning, Coaching & Quality.  However, her role was limited to consultation and support and ensuring adherence to policy and fair procedures and she had no hand in the decision-making process leading to the Complainant’s dismissal.

Cross-Examination of the Industrial Relations Manager

The Industrial Relations Manager was asked what policy and procedures the decision-makers were required to follow.  She confirmed that there was no written policy providing for the process adopted in the instant case and it “…was similar to how a disciplinary would be run but there was no disciplinary matter.”  She was asked to outline how the steps adopted in the instant case aligned with the step-by-step process in the Respondent’s written disciplinary procedure (being the Corrective Action Policy).  She replied that the Complainant had been afforded fair procedures in terms of being given an invite letter to a formal meeting to discuss his employment.  This invite had outlined the issues and potential outcome and afforded him the right to representation.  The Complainant had been afforded an opportunity to respond in writing when he declined to meet.  Formal notes had been taken and time had been taken to consider his representations before a decision to terminate had been made and he was afforded an appeal.  She was asked why then the Complainant had not been afforded the benefit of the staged approach including a verbal warning, first written warning and final written warning, etc. before a dismissal.  She replied that these stages could be skipped such as in a gross misconduct situation.  It was put to her that this was not a gross misconduct situation.  In fact, the Respondent had skipped from stage 1 -verbal counselling to stage 5 - dismissal of an employee who had just returned from paid stress-related sick-leave and nothing like that was contained in the Corrective Action Policy.  She maintained that this course had been permissible in the circumstances. 

The Industrial Relations Manager agreed with this Adjudication Officer that until the notification letter of 11th September 2023, the Complainant had not received any forewarning that the nature of his communications could result in his dismissal.  She said that it was hoped that he would attend the meeting which may have changed the position.  Noting that concerns about his absences had also been flagged for verbal counselling, it was put to her that the Complainant should have been afforded more time to deal with matters and the process had been too fast.  She replied that everything had unfolded over several months and the verbal counselling applies to all employees with two absences or more and he had three absences.  The Respondent had been left with “a huge amount of decisions” to be made based upon his input and appeal which had to be addressed.  She was asked to clarify the legal basis for the Complainant’s dismissal.  She confirmed that legal advice had been obtained and the Complainant had been dismissed owing to a breakdown in trust and confidence, falling under the category of another substantial ground as provided for by Section 6(1) of the Unfair Dismissals Act 1977 (as amended).  This was a unique case and the only time that the Respondent has dismissed an employee on this basis.  She further confirmed that a Performance Improvement Plan (PIP) or termination agreement had not been considered as an alternative.

The Industrial Relations Manager was asked whether “compulsory transfer or reassignment” of the Complainant had been considered as provided for in the Respondent’s disciplinary policy as an alternative to dismissal.  She replied that there needed to be a finding of wrongdoing for that to take place which was absent.  She was asked whether it was a fair appraisal of the situation to say that management did not like the way the Complainant communicated.  She replied that whilst his communications may have been difficult to follow, she did not believe that anyone took any particular issue and there was no disciplinary issue.  It was put to her that it was clear from the Respondent’s correspondence to the Complainant that there had been an issue with his communication.  She replied that was just one part and not the core reason of the decision.  On the issue of communication, he had declined to meet in person throughout the process.  She was unaware that the Complainant had sought communication training since 2022 as she did not receive those requests.  She pointed out that the Complainant could have availed of a comprehensive self-learning portal with training resources which employees can undertake during paid working-time.

Internal Complaints against the Complainant

In its written submissions, the Respondent also outlined details of informal complaints made by the Complainant’s colleagues against him around the same time of these alleged protected disclosures and submitted related correspondence.  These were not traversed at the hearing and the fact that they occurred was not in issue between the Parties.  In June 2023, two colleagues had raised issues in relation to the Complainant with Mr A.  These issues largely related to his communication style and included the Complainant saying things like “look – do what you want to do” and “what’s the question” when asked for his input on work related issues.  These were not raised as official complaints, and Mr A had sought to address these issues informally with the Complainant with a view to improving his interactions with colleagues.  It was the Respondent’s position that the Complainant had refused to take this feedback on board and responded in a combative fashion including stating that: “I am absolutely not agreeing with the disposition and summarized conclusions given by yourself…  I have made it explicitly clear that I will not accept any accusatory statements made against me.  Neither now nor in the future.  This will not be subject to any discussions or dialogue”.  It was submitted that this was a wholly inappropriate response to a genuine attempt to resolve conflict between co-workers, without recourse to a formal disciplinary process. 

Absences by the Complainant

Whilst the aforesaid processes were ongoing, the Complainant was absent from work from 28th to 29th July 2023, on 2nd August 2023 from 2:15pm to 6pm, and from 10th August to 1st September 2023.  The Complainant returned from sick-leave on 4th September 2023.  The Respondent enforces a strict Attendance and Time Keeping Policy.  In accordance with that Policy, verbal counselling is issued to all employees for two instances or more of poor timekeeping and/or absences within a 6-month period.  It was contended that verbal counselling had been issued to the Complainant in line with this Policy.

Respondent’s Legal Submissions regarding Complaint/s under the Protected Disclosures Act 2014

It was submitted that the Complainant’s complaint under the Protected Disclosures Act 2014 (as amended) has no basis because the issues put forward as protected disclosures do not constitute ‘relevant wrongdoings’ as defined under Section 5(3) of the Act.  The issues raised, namely, the GDPR breach issue and the handbag destruction issue relate to working procedures and therefore clearly fall outside the scope of the legislation.  Accordingly, none of the Respondent’s actions towards the Complainant including the termination of his employment constitute penalisation as defined by Section 3 of the Act.  As set out above, the termination of the Complainant’s employment was caused by the loss of trust and confidence between the Parties, and therefore did not result wholly or mainly from the Complainant making a protected disclosure pursuant to Section 6(2)(ba) of the Unfair Dismissals Act 1977 (as amended).  It is respectfully submitted that the Respondent had no option but to terminate the Complainant’s employment based upon the breakdown of the working relationship between the Parties and the utter loss of trust and confidence between them.  The Respondent adhered to a comprehensive Performance and Corrective Action Policy providing for a preliminary corrective action procedure entailing verbal counselling, the conduct of investigations, and a staged disciplinary process with sanctions to dismissal and a paper-based appeal.  The Respondent is satisfied that the Complainant was always treated fairly and in line with company policy in all respects throughout his employment.  Accordingly, these complaints should be dismissed in their entirety. 

Respondent’s Legal Submissions regarding Complaint of Unfair Dismissal Simpliciter

The Respondent wholly refuted the Complainant’s position that his dismissal was substantially and procedurally unfair.  It was the Respondent’s position throughout that the Complainant had not been dismissed for misconduct and there had been no allegations or disciplinary findings of wrong-doing against him.  The Complainant had been reasonably dismissed owing to the breakdown of loss of trust and confidence between the Parties as he constantly refused to (a) engage with his Line Manager and (b) respect the outcome of any internal process.  The relationship between the Parties had deteriorated to such an extent that it had become utterly unworkable.  In fact, on numerous occasions the Complainant himself had openly declared that he no longer had trust and confidence in the Respondent.  The dismissal was fair, both substantially and procedurally.  Aside from the non-exhaustive list of grounds where a dismissal will not be deemed unfair under Section 6(4) of the unfair Dismissals Act 1977 (as amended), 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.”  The Respondent did not have any policy covering dismissal on this ground.  However, explicit reference to trust and confidence between the Parties will rarely appear within any contract of employment or employer’s policy as it is a well-established implied term [see Murphy & Regan Employment Law (2017) 2nd Edition, Chapter 3 – The Terms of the Employment Contract].  This is akin to the definition of constructive dismissal under Section 1 of the Act: “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”  Without prejudice, it was further submitted that an employee’s behaviour is a factor to be considered when assessing the level of compensation to be awarded upon a finding of unfair dismissal as provided for by Section 7(2)(f) of the Act: “Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to- the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.” 

The Respondent had also conducted itself in a reasonable manner towards the Complainant with no less than eight decision-makers considering his various grievances and appeals.  All processes were carried out comprehensively and in accordance with the Company’s written policy and fair procedures.  In particular, the Respondent had ensured the following safeguards: · The Complainant was provided with 48 hours’ notice of the formal meeting.  · The Complainant was provided with a formal invitation letter which outlined the concerns that were planned to be discussed at the meeting.  · The possible outcomes of this meeting were outlined to the Complainant within the invitation letter.  · The Complainant was provided with the option to have a colleague accompany him at the meeting.  · As an exception, the Complainant was also provided with an alternative option to respond in writing if he did not want to attend the meeting via Zoom.  · The Respondent agreed to the Complainant’s request to have his grievance appeal determined before a decision was made regarding possible termination of his employment due to the breakdown in mutual trust and confidence.  · The decision to terminate was made by an independent senior leader.  · The Complainant was provided with an appeal which was carried out by a senior independent manager. 

The Respondent had gone above and beyond what a reasonable employer should be expected to do in managing the numerous grievances and issues raised by the Complainant.  Between April and September 2023, the Complainant had raised a litany of lengthy informal and formal complaints in relation to (i) his employment and (ii) his Line Manager and colleagues  He also subsequently raised complaints regarding the HR personnel (People Experience Team) who were supporting the handling of his grievances and other issues.  The Respondent attempted to engage with the Complainant in relation to all of his issues.  However as the months passed, the Complainant had become increasingly fixated on repeatedly raising new issues with the Respondent.  Whilst these complaints were lengthy, the Complainant provided little or no evidence to back up his claims.  His emails to various staff of the Respondent were characterised as “combative, recalcitrant, and uncooperative”.  It became increasingly clear that the Complainant was taking an unreasonable approach and was trying to frustrate processes and would not accept any findings of the Respondent.  Mediation was offered on numerous occasions by the Respondent, which the Respondent would have paid for but the Complainant had not been willing to engage in mediation.  The tone of the Complainant’s interactions with his co-workers had deteriorated to such an extent that a working relationship between the Parties had become untenable.  It is beyond the scope of these submissions to address each issue that was raised by the Complainant but some of the main issues arising were appended to these submissions.  It was submitted that each grievance should be considered in full to understand the nature of the Complainant’s behaviour.  The various grievances raised by the Complainant along with the steps taken by the Respondent to address them were set out in detail as per the evidence adduced.

Section 6(6) of the Unfair Dismissal Act 1977 (as amended) states that in determining whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in Section 6(4) or that there were other substantial grounds justifying the dismissal.  It was submitted that it was well established that an employee’s violation of the mutual duty of trust and confidence forms part of the “other substantial grounds justifying dismissal” under the Act.  The Respondent strongly rejects the Complainant’s claim that he was unfairly dismissed.  The Complainant was dismissed due to the breakdown of trust and confidence between the Parties, and the fact that he refused to respect any outcome or engage with his Line Manager.

In Cronin -v- Eircom Ltd [2007] 3 IR 104, Laffoy J. stated that there is an implied contractual term of trust and confidence in every employment contract: “I do consider that as a matter of principle a contractual term of mutual trust and confidence which as recognised by the House of Lords in Mahmood should be implied into each contract of employment in this jurisdiction by operation of law.”  In O'Callaghan -v- Dunnes Stores UD54/2012, the Employment Appeals Tribunal noted, inter alia, that “trust and confidence are essential elements in the employment relationship”.  In Patrick O’Malley -v- An Post UD 1285/2014, the Employment Appeals Tribunal held that in considering the substantive issue as to whether the conduct amounts to gross misconduct, it is not the role of the Tribunal to supplant the role of the employer but to consider whether the employer acted reasonably in deciding to dismiss the Complainant.  The authority provided by the Respondent bearing the closest resemblance to the facts in the instant case is the Labour Court decision in Structured Finance Management (Ireland) limited -v- Vadym Kalinin UD16/110.  In that case, the Labour Court found: “…the Complainant had become unmanageable and was increasingly occupying management time and resources addressing unfounded and unsubstantiated accusations against other employees and members of management.  This behaviour was having a severe adverse impact on the other members of staff and on the operation of the business.  Accordingly an ongoing relationship between the complainant and the respondent was at best unlikely to succeed.  The Court finds that the bond of trust between the employer and employee had been fractured if not completely broken.  Taking all matters into account the Court finds that the decision to dismiss and the manner in which it was taken cannot but be considered an unfair dismissal within the meaning of the Act.  However the Court also finds that the Complainant contributed significantly to this outcome through his unreasonable and indefensible behaviour towards his colleagues and towards management.  Taking all matters into account the Court finds that the Complainant was 70% responsible for his dismissal and the Respondent 30%.”  Likewise in the instant case and despite all efforts being made by the Respondent, including appointing various different independent senior managers and directors to ensure that different perspectives and views were obtained, the Complainant would not accept the outcome of any process.  It is submitted that his declarations that he did not have trust and confidence in his employer, and the endless issues raised along with his inability to work with his Line Manager and his colleagues made his continued employment with the Respondent utterly untenable.  As such, there was a clear substantial reason as to why his dismissal was substantially fair. 

This Adjudication Officer asked the Respondent to cite any cases whereby a breakdown in trust and confidence between an employer and employee constituted a substantial ground justifying dismissal pursuant to Section 6(1) of the Unfair Dismissals Act 1977 (as amended).  A supplemental submission setting out the caselaw relied upon was furnished including a summary of the judgements / decisions in O'Callaghan -v- Dunnes Stores UD54/2012; A Process Technician -v- Healthcare Products and Medical Devices Manufacturer – ADJ-00009857; ADJ-00003721 (Anonymised Parties); John Higgins -v- Governor and Company of Bank of Ireland [2013] IEHC 6; A Worker -v- A Company [2004] 15 ELR 258 and David Geoghehan v Fannin Ltd t/a Fannin DCC Vital - ADJ-00036058.  All of the cases cited pertained to constructive dismissal pursuant to Section 1(b) or unfair dismissal under Section 6(4) of the Act.  It was submitted that the reason for so few dismissal cases on other substantial grounds is that they rarely arise.  However, the Complainant’s behaviour was so extreme that dismissal was warranted in the instant case.

Findings and Conclusions:

Complaint under the Protected Disclosures Act 2014- CA-00059268-003

The Complainant contends that he was subjected to penalisation as a consequence of making two protected disclosures, namely ‘the GDPR breach issue’ and ‘the handbag destruction issue’ as set out above.  The Respondent contends that these issues do not constitute protected disclosures and the Complainant had complained of the conduct purporting to constitute penalisation before they arose and had been particularly aggrieved by his lack of promotion.  The starting point is whether these issues constituted protected disclosures under Section 5 of the Protected Disclosures Act 2014 (as amended):

“5(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 8, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7,7B,8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if- (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act-

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) The motivationfor making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”

I have considered the authorities on protected disclosures as set out above.  However, the most relevant authority to the primary issue to be determined, being whether the issues raised constitute protected disclosures, is the Supreme Court Judgement in Baranya -v- Rosderra Irish Meats Group Limited [2021 IESC 77.  Hogan J. held that that no precise form of words is required for the purpose of determining if words uttered i.e. ‘relevant information’ amounted to an allegation of wrongdoing: “In essence, therefore, the issue for the Labour Court was first to ask what precisely did Mr. Baranya say and, second, to inquire whether, having regard to the general context of the words actually uttered, they amounted to an allegation of “wrongdoing” in the sense of both S.5(2) and S.5(3)(d) of the 2014 Act, i.e., did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him.  The allegation must, of course, contain such information – however basic, pithy or concise – which, to use the language of S.5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer: to adopt the words of Sales LJ regarding a parallel provision in the corresponding UK legislation, the disclosure must have “sufficient factual content and specificity” for this purpose: see Kilraine v. Wandsworth LBC [2018] ICR 1850 at 1861, even if it does merely by necessary implication.  If these two questions can be answered in the affirmative – a matter which I again stress is for the Labour Court as fact finder in the first instance and in respect of which I offer no view – then the complaint can be regarded, at least in principle, as a protected disclosure.”  As specified by Section 5(2) of the Protected Disclosures Act 2014 (as amended), it is also unnecessary that the substance of the’ relevant information’ be true so long as in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings and has come to the attention of the worker in a work-related context.  Finally, it is noted that post- Baranya, the 2014 Act was amended by the 2022 Act by the insertion of Section 5A, expressly excluding interpersonal grievances exclusively affecting a reporting person as constituting relevant wrongdoings.  This does not automatically exclude interpersonal grievances from constituting protected disclosures.  Section 8 provides a presumption that a disclosure is a protected disclosure until the contrary is proven.  Finally, Part 2 sets out the persons/bodies to whom a protected disclosure must be made and there is no issue regarding compliance with same in this case.

The High Court Judgment if Clarke -v- CGI Food Services [2020] 3 IR 389 provides useful guidance regarding the language that should be used to communicate a valid protected disclosure.  At para 17, Humphreys J. confirms that it is unnecessary to expressly invoke the Protected Disclosures Act 2014 to make a valid protected disclosure as distinct from retrospectively creating a case from nothing: “One can make a protected disclosure without invoking the 2014 Act or without using the language of “protected disclosure”.  It is often only after the victimisation, dismissal or other adverse consequences arrives that one has to “retrospectively” figure out what really happened and analyse it in the statutory language.  There is nothing wrong with that process and it is certainly different from “retrospectively” creating a case from nothing.”

The Complainant contends that two of his numerous grievances constitute protected disclosures under the Protected Disclosures Act 2014 (as amended), namely his involvement in a potential GDPR breach (referred to as ‘the GDPR breach issue’) in June 2023 and the improper disposal of a customer’s property (referred to as ‘the handbag destruction issue’) in July 2023.  The Respondent contends that these issues do not constitute relevant wrongdoings and/or that they relate to workplace procedures expressly excluded by Section 5A.  In relation to the GDPR breach issue, the Complainant contended that his complaint about being asked to provide access to a dummy account using the access details of a former colleague gave rise to a false claim for compensation and/or a potential GDPR breach and as such fell within Section 5(3)(a) of the Act, being that an offence has been, is being or is likely to be committed.  In the absence of further legal clarity on his behalf, I have examined both the wording used by the Complainant within his written grievances and context against all of the relevant wrongdoings under Section 5(3) of the Act including Section 5(3)(a) in accordance with the relevant law as set out aforesaid.  Firstly, nowhere in any of his communications to management or HR did the Complainant reference concern about a false claim for compensation and I am therefore satisfied that this falls into the category of “retrospectively creating a case from nothing.”  Depending upon the context, a concern about a breach of the General Data Protection Regulation (GDPR) as underpinned by the Data Protection Acts could potentially constitute a protected disclosure.  Whether misconceived or not, it is clear that the Complainant was expressing a view to management that an internal request to provide access details of a former employee to a dummy account was inappropriate and was potentially asking him to breach the GDPR.  Notwithstanding lengthy and detailed grievances to the Respondent, at no stage by implication or otherwise, did the Complainant indicate a reasonable belief that a criminal offence has been, is being or is likely to be committed.  The height of his complaint was: “I must advise you that I can only reach the conclusion that I was put in a very serious compliance and gross misconduct situation.”  There is a world of difference between compliance with the General Data Protection Regulation (GDPR) and commission of a criminal offence as enforced under the Data Protection Act 2018.  In the particular context of this case, I find as a matter of fact that the Complainant was clearly expressing concern about his own compliance with the GDPR and any disciplinary implications were he to be in breach.  The first mention of potential criminality arose during this hearing and in my view was formulated to shoe-horn this grievance into the definition of a protected disclosure.

Turning to the handbag destruction issue, in the absence of further legal clarity, I have also examined the wording and context of the Complainant’s grievance in this respect against the definition of relevant wrongdoings under Section 5(3) of the Protected Disclosures Act 2014 (as amended).  The main tenor of his concern to HR is expressed as follows: “In line of the Work guidelines, I am not required or expected to accept sabotage to my scorecard in instances where a previous agent has failed to comply with company regulations and creates scenarios that would lead to extreme customer dissatisfaction and would impact on my performance unduly and outside my control!”  When pressed as to how this issue constituted a relevant wrongdoing and whether he was alleging theft, the Complainant responded that its handling had been “very incorrect”.  However, at no stage, did he indicate any concern about theft or any other wrongdoing.  It is clear from his correspondence that his concern related to the purported failure by Mr A and Ms C to follow procedures regarding the disposal of an undelivered handbag and the impact of taking on the case upon his own performance statistics.  Accordingly, I am satisfied that the Respondent has proven the contrary such as to displace the presumption that these two issues constitute protected disclosures. 

Lest there be any doubt regarding my findings in this respect, I would have been satisfied that as the conduct purporting to constitute penalisation predated the alleged protected disclosures (as evident from the Complainant's first grievance), it could not have arisen in reaction to same.  It is also abundantly clear from the inter partes correspondence that all of his issues with Mr A emanated from his lack of promotion.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this unfair dismissal complaint in accordance with the relevant provisions under Schedule 2 of the Protected Disclosures Act 2014 (as amended).  For the aforesaid reasons, I find this complaint not to be well-founded.

Complaint under Section 8 of the Unfair Dismissals Acts - CA-00059268-004

As relied upon by the Respondent to justify the Complainant’s dismissal, Section 6(1) of the Unfair Dismissals Act 1977 (as amended) 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(2) provides a list of specific circumstances which may automatically give rise to an unfair dismissal, none of which apply herein.  Section 6(3) provides for dismissals arising from redundancy which does not apply herein.  Section 6(4) provides: “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.”  Section 6(6) provides: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”  Accordingly, the burden of proof rests with the Respondent to show that the dismissal was fair.

In Redmond on Unfair Dismissal (Third Edition, 2017) at paragraph 18.01, Desmond Ryan refers to Section 6(1) of the Unfair Dismissals Act 1977 (as amended) as providing “a general residual category of reasons justifying dismissal, not restricted to those otherwise listed in subs (4) of s 6 of the Unfair Dismissals Act 1977…  The requirement of a ‘substantial’ ground deters employers for dismissing for a residual reason.” Chapter 18 covers the factual scenarios found by the various employment fora to fall within Section 6(1) including dismissals pertaining to employers’ interests, third-party pressure and company reorganisation.  None of the scenarios includes the particular circumstances arising herein as constituting a substantial ground justifying dismissal but that is not to discount the possibility that other grounds could lawfully arise.

Regardless of whether the substantial ground for dismissal falls within Section 6(1) or Section 6(4), it is well-established that the dismissal must be both substantially and procedurally fair in accordance with the principles of natural and constitutional justice e.g. Re: Haughey (1971) IR 217.  In this respect, Desmond Ryan observes: “There are two stages:  First, an employer’s reason for dismissal must be identified.  Second, an employer must be able to justify its decision to dismiss.  The test of reasonableness is applied to determine the fairness or unfairness of its decision.” [Redmond on Unfair Dismissal (Third Edition, 2017) at paragraph 13.01]  The requirement for reasonableness is enshrined in Section 6(7) of the Unfair Dismissals Act 1977 (as amended) which provides: “Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and…” 

In the High Court Judgement of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241 [relied upon by both Parties herein], involving a complaint of unfair dismissal arising from misconduct on appeal from the Circuit Court, Noonan J. elaborated on what was required by Section 6(7) of the Unfair Dismissals Act 1977 (as amended): “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), 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 the 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 of the employer.  The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”  Finally, Section 7 of the Unfair Dismissals Act 1977 (as amended) provides for the available redress and Section 8 provides for the referral of unfair dismissal complaints to the WRC.

I note that the Complainant’s contract of employment contained the usual clauses regarding the Respondent’s entitlement to terminate employment and requiring him to undertake such other work as may be assigned to him by the Respondent from time to time.  Having considered all of the evidence and supporting documentation, I am satisfied on the balance of probabilities that the Complainant’s dismissal was essentially for misconduct for insubordination and refusal to comply with management’s directions falling squarely under Section 6(4)(b) of the Act.  By early September 2023, considerable resources had been utilised in dealing with the Complainant’s multiple and perpetual grievances and he had effectively become unmanageable.  He was causing disquiet to his team and considerable stress to his Line Manager. 

On the balance of probabilities, I am satisfied that in order to obviate the need for a staged process requiring further resources, a fast-track process not provided for by its Performance and Corrective Action Policy was adopted under the guise of ‘a breakdown in trust and confidence’ to dismiss the Complainant.  Aside from the undisputed evidence that the Complainant’s conduct and tone of his communications was an issue, the inter partes correspondence is peppered with references that support this conclusion.  For example, on 1st August 2023, the Temporary Operations Manager who had given the Complainant verbal counselling emailed him stating: “Further to our meeting today, I am emailing to confirm the details of our conversation, whereby you were Verbally Counselled under the informal process of the Company Performance and Corrective Action Policy, in respect of your breach of the Performance and Corrective Action Policy.”  The email then outlines three “issues which have been observed and are of concern”,firstly his refusal to go on emails on 22nd June 2023 when requested by his Team Leader, Mr A and his response “Denied” – “Please note that within the terms of the policy this refusal could be considered to be unsatisfactory attitude and also insubordination for refusing to comply with a direct request from your team leader and which falls within the definition of a serious offence in the policy.”  The second issue was his online communications with other team members demonstrating “…a lack of commitment to our DNA (Act with integrity, be for everyone).  This lack of co-operation also falls within the definition of a “Serious Offence” within the meaning of the Performance and Corrective Action Policy.”  The third issue was his refusal to accept feedback in relation to his coaching plan to help achieve his desired promotion.  The email finished with various warnings including that “an immediate and sustained improvement is required in your conduct, specifically any further refusal to carry out a management instruction may be viewed as insubordination and demonstrating a lack of cooperation and unsatisfactory behaviour.” and “Please note that failure to come into compliance with, and to adhere to the Company’s policy in this regard may result in escalation to the Formal stages of the Company Performance and Corrective Action Policy.”  However, this email did not include any explicit warning that such continued conduct could result in dismissal.

Also, notably the Respondent’s Performance and Corrective Action Policy classifies “Insubordination, including refusal to comply with a direct request from management” as serious misconduct falling short of gross misconduct.  Following informal verbal counselling in relation to serious misconduct, the Policy provides for a formal staged Corrective Action Process as follows: “generally, the steps in the process will be progressive, for example a Verbal Warning (confirmed in writing), a First Written Warning, a Final Written Warning and Dismissal.”  However, this Policy was disregarded and bypassed by the process adopted in the instant case.  My view is copper-fastened by the contradictions within the evidence of the various decision-makers, who on the one hand sought to contend that there had been no issue with the Complainant’s conduct, yet cited numerous examples of inappropriate conduct.  In particular, the termination letter of 22nd September 2023 issued by the Head of Buyer Experience makes numerous references to concerns about the appropriateness of his communications, interactions with other staff and inability to accept grievance outcomes.  Additionally, the letter from HR to the Complainant of the same date confirmed that the Appeals Procedure under the Company Performance and Corrective Policy was being adopted in express acknowledgment that the disciplinary procedure was being utilised against the Complainant.

Whilst the fast-track course taken by the Respondent may be understandable in all the circumstances, it meant that the Complainant did not have sufficient forewarning that a continuation of this type of conduct could result in his dismissal or the checks and balances afforded by a formal disciplinary process.  In particular, it did not afford him a sufficient opportunity to correct his behaviour, for instance, through a staged approach including first written and a final written warning and any requisite training supports.  Accordingly, I find that the Complainant’s dismissal was in breach of fair procedures and is thus unfair.  In so finding, I have considered the caselaw relied upon by the Respondent to contend that his termination properly fell within the catchall provision under Section 6(1) of the Unfair Dismissals Act 1977 (as amended) allowing for other substantial grounds and am satisfied that none of the cases cited support such an approach in the particular circumstances.  Without the necessity for a detailed analysis, the jurisprudence suggests that for the purposes of a complaint of unfair dismissal under the Unfair Dismissals Acts to the WRC, a breakdown in mutual trust and confidence can only arise in the context of a constructive dismissal under Section 1(b) or a dismissal on the grounds of misconduct under Section 6(4)(b).  I consider that had there been a staged approach and such conduct persisted, dismissal for misconduct would have been lawful.  By way of further observation, I have reviewed the grievance procedures in the instant case and am satisfied that they were conducted in accordance with internal procedures and that the findings were reasonable.  However, I consider that the persons assigned to the grievance process should not have been involved in the termination process.  Therefore, even if I had accepted the Respondent’s position, I would have had concerns about the objectivity of the Head of Buyer Experience in circumstances whereby she investigated the Complainant’s grievances contemporaneously with the termination of his employment.

It follows from my finding that the issues raised by the Complainant did not constitute valid protected disclosures within the meaning of Section 5 of the Protected Disclosures Act 2014 (as amended), that the Complainant’s dismissal cannot fall within Section 6(2)(ba) of the Unfair Dismissals Act 1977 (as amended).

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint in accordance with relevant provisions.  For the aforesaid reasons, I find that the Complainant was unfairly dismissed by the Respondent.  Section 7(1) sets out the available redress including re-instatement, re-engagement and compensation.  Specifically, Section 7(1)(c)(i) provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”  Section 7(2) sets out the factors to be considered when determining the amount and relevant to the instant case: “(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,” and(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid.”  Section 7(3) provides: ““financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.”  

I have considered the submissions on compensation.  I am of the view that the Complainant contributed significantly to the circumstances giving rise to his dismissal.  At the hearing he accepted that the tone of his communications with management had not been appropriate.  However, I do not propose reducing the award in circumstances where it was not put in in issue that he was suffering from mental health difficulties at the time going some way to explain his conduct.  I am also cognisant of the low level of financial loss suffered and the significant work undertaken by his legal team.  I am further satisfied that the Complainant mitigated his losses and secured better-paid employment within a short period of time.  Therefore, I consider it just and equitable in all of the circumstances to award the Complainant €8,500 compensation representing his loss of earnings for the period of his unemployment to be paid within 42 days herewith.

Dated:   31st July 2026

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Section 5(3) of the Protected Disclosures Act 2014 (as amended) - whether grievances constitute ‘relevant wrongdoings’ – Section 6(1) of the Unfair Dismissals Act 1977 (as amended) - whether breakdown in trust and confidence constitutes another substantial ground for dismissal - fair procedures