Complainant

Respondent

Parties

Rudolf  Csikos

Keelings Logistics Solutions

Complainant

Respondent

Parties

Rudolf Csikos

Keelings Logistics Solutions

Representatives

  Self

Emily Maverley IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00068358-001

30/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00068358-002

30/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00068358-003

30/12/2024

The Complainant in his complaint form alleged the following:

Unfair Dismissal:

I posted on Linkedin on October 4th and 9th. I outlined real problems. Then nothing happened for over a month. I was suspended from work with pay on November 7, 2024. Following this, there were disciplinary hearings on November 12 and November 27, at which the evidence I presented was not taken into account. It was incomprehensible to me that at the second hearing the investigator stated that he did not deal with the laws and would not investigate or refer only to the minutes of the previous record. So what was it all for? After this, I received my resignation on December 2nd. I appealed my dismissal, so there was another meeting on December 16th.

This was also a completely pointless thing because my employer does not admit his mistakes.

On December 23rd, I received a letter saying my appeal was rejected.

In summary, in the two posts I did not accuse my employer, but according to them, since the older events were related to the company, I damaged the company's reputation. Specifically, I accused the current WRC General Manager and the adjudication officer of the ADJ-00025414 case. The person in question has not worked for my employer for more than two years and the information I provided is true. That's why I don't understand the justification for the termination. Of course, I will attach the minutes.

Protected Disclosure:

I have reported the following violations of the law to my employer, but they are refusing to comply with them.

ORGANISATION OF WORKING TIME ACT, 1997

section 16. (2)a,b, (3) S.I. No. 299/2007 - Safety, Health and Welfare at Work (General Application) Regulations 2007section 7. 155. 156. 157.

The employer at 2019 conducted a night work hazard assessment, but it was falsified, which is a crime in itself. I believe this is relevant protected disclosure. The most regrettable thing about the above is that the legal obligation continues to be ignored, and thus the well-being, health, and lives of workers are deliberately endangered.I can't upload more documents, I'll send them.

The employer disputes its responsibility for the deaths that occurred in 2013. In their opinion, they are not responsible because they did not comply with the laws that protect night workers. In my opinion, if the laws had been followed, it is possible that our two colleagues would still be alive.

Minimum Notice

After 16 years, there would have been an 8-week notice period.

These complaints were heard along with complaints detailed in Adj-00057191. The Complainant believes that the Employer has breached the Organistion Working Time Act by not classing him and others as Special Category Night Shift Workers. He posted on LinkedIn matters that may have been connected to what he sees as a wrongdoing:

“Hi Audrey, we met a long time ago. Your statement is interesting, because while you were HR Manager...”,

 The Protected Disclosures Act 2014 as amended provides protection to a whistleblower once the matters complained about meet the definition as set out in that Act. This includes protections from any detriment linked to making a protected disclosure even if that subsequently is found not be well founded but was a reasonable belief held by the Complainant.

 A unique feature of this case is the fact that the alleged protected disclosure was posted on the Social Media site LinkedIn. The Respondent puts in issue how the alleged wrong is now being framed as properly reported as required by the Act. In addition, the employer stated that the posting cannot have the protection of the Act as the relevant disclosures are untrue and could not be reasonably held by any objective person on the facts. The Respondent states that it was a highly damaging post and contained false allegations about them that in turn broke the trust and confidence that they had in him as an employee. That fractured the employment contract irreparably and justified his dismissal.

This Adjudicator has issued a decision on a related complaint where the Complainant claimed he was a special category night worker and arising from that classification he was unlawfully required to work more than an 8 hour shift in breach of the Organisation Working Time Act:

Special Category Worker Night Shift CA-00069578-001

A tribunal does not complete its own assessment and is bound to decide a case based on the evidence presented at the hearing.

The Respondent called Doctor Gleeson who signed off on the original report which concluded that the Complainant was not a special category worker and therefore was not limited to working 8-hour shifts. She stood over the report and methodology used to arrive at that decision. That report was opened to this tribunal. On the evidence of this witness, I find that the Complainant was not a special category worker.

The worker relied on his own experience and what he determined to be heavy and difficult work.

The original report concluded that:

“the tasks being performed by the loaders do not meet the classification of special category night work, the employees conduct varied level of physical strain throughout the night, they ae performance managed on loading. They mostly don’t get minimum time on the pick to be in scope for pick performance management.”

It is a detailed report that assessed the Complainant’s time in the chill room and the loads he lifted. It also assessed other workers workload and the task difficulty on the same shift. The Complainant queried why he had to pick (this is a difficult and heavy task) and it was required due to the increased order demands at Christmas. The Complainant stated he was required to pick other than at Christmas. This activity is physically demanding depending on the time spent on the task.

The Complainant continues to refuse to accept the independent assessment because he believes that he was performing physically demanding work in cold conditions that qualified him as a special category night worker under section 16 of the Organisation of Working Time Act.

As I have determined based on the oral evidence of Doctor Gleeson and the original independent report that the Complainant is not a special category night worker, I now turn to the claim that he was working excessive hours.

I directed the company to provide a detailed breakdown of the hours worked during the relevant period and for payslips to be provided to show that the record reflected the paid hours. That assessment shows that the Complainant has not worked excessive hours.

As the Complainant is not a special category worker his hours are correctly calculated in accordance with section 16(2) (b) of the Act and averaged over a 2-month reference period. With reference to the cognisable period his average hours are as follows:

·       12th May to 6th July 2019 34.63 hours

·       7th July to 31st August 2019 33.43 hours

·       1st September to 26th October 2019 35.41 hours

As the Complainant is not a special category night worker and he has not worked on average more than 8 hours in the relevant period as specified at section 16:

(2) Without prejudice to section 15, an employer shall not permit a night worker, in each period of 24 hours, to work—

(a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,

(b) in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

(i) 2 months, or

(ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court under section 24.

I find that the complaint is not well founded.

That decision related to a complaint lodged with Commission on the 14th of November 2019 when the Complainant was an employee of the Respondent. The matters now considered were lodged with the Commission on the 30th of December 2024 arising from an alleged Unfair Dismissal claim however the factual matrix of this previous claim is crucial to understanding this complaint.

The Complainant represented himself. He gave evidence under oath and was cross-examined by the Respondent's representative.

He posted on LinkedIn on two occasions in October 2024. He directed the posts at who he refers to as Audrey, a former HR manager of the Respondent who is now Director General of the WRC. He stated that while she was HR manager, two colleagues died because of the employer's failure to comply with the Organisation of Working Time Act and its failure to carry out proper health screenings for night shift workers. He also posted about the adjudicator who had originally heard his working time complaint, stating that the adjudicator had misinterpreted data in the evidence submitted.

The Complainant's position is that the posts were not about Keeling’s. He states that the posts were directed at an individual who had not worked for the company for more than two years. He maintains that the content of the posts is true and that he was reporting a serious wrongdoing.

He states that he had raised these concerns internally on multiple occasions, including by email to HR, and received no satisfactory response. He argues that having exhausted internal channels, he was entitled to bring the matters to a wider audience.

He contends that the posts attracted the protection of the Protected Disclosures Act 2014. He relies on section 5(3)(d) of the Act, being the endangerment of the health or safety of any individual, as the relevant wrongdoing disclosed.

He argues that the disciplinary process was unfair and predetermined. He states that the investigating manager refused to engage with the underlying working time legislation or with the documentary evidence he presented. He characterises the disciplinary investigation and appeal as a tick-box exercise designed to give the appearance of fair procedure while concealing a decision that had already been made.

He states that the dismissal was disproportionate.

He also contends that arising from his 16 years of service with the Respondent he is entitled to an 8-week notice payment under the Minimum Notice and Terms of Employment Act 1973.

The Complainant published two posts on LinkedIn in October 2024. The posts named a former HR manager of the company and stated that two colleagues had died due to the employer's disregard of the law. The posts appeared on the Complainant's LinkedIn profile, which identified him as an employee of Keeling’s. The former HR manager was identifiable as having held that role at Keeling’s. The posts therefore directly connected the company to the deaths of two former employees.

The Respondent states that the posts were seriously damaging to its reputation, including its relationships with key suppliers and its ability to recruit. The allegations made were false and without evidential foundation.

A disciplinary investigation was conducted. The Complainant was notified of the allegations in advance, was offered the right to be accompanied by a representative, which he declined, and was given the opportunity to present his case in full, which he did. The Complainant was provided with all relevant documents including the complaint letter. He had the opportunity to respond to all matters put to him.

Following the investigation, the Complainant was dismissed for gross misconduct. He exercised his right of appeal. The appeal was heard by a separate manager who had not been involved in the investigation. The Complainant's grounds of appeal were considered individually and rejected. The outcome was confirmed in writing on 23 December 2024.

The Respondent denies that the posts constituted a protected disclosure. It submits that the posts were a communication to the world at large and must therefore satisfy the additional requirements of section 10 of the Protected Disclosures Act 2014. The Respondent argues that the Complainant had no reasonable belief, assessed objectively, that the deaths of two colleagues were caused by breaches of the Organisation of Working Time Act. No medical or factual evidence was produced to support that connection. The allegations were assertions and opinions unsupported by any evidential basis.

The Respondent submits that the Complainant's working time claim had been ventilated before the WRC and ultimately found not to be well founded. The posts were published five years after the Complainant first raised his working time concerns, and more than ten years after the deaths to which they referred.

The Respondent submits that dismissal was a proportionate response within the band of reasonable responses open to a reasonable employer. It submits that as the dismissal was for gross misconduct, no minimum notice payment is owed under section 8 of the Minimum Notice and Terms of Employment Act 1973.

Protected Disclosure:

The LinkedIn Post stated that the previous HR Director of his employer and currently Director General of the WRC had submitted false statements to an Adjudication Hearing relating to his claim that he should have been classed as a Special Night Worker. This required his employer to schedule shifts no longer than 8 hours on any night shift arising from the arduous nature of the work. The classification was doctored according to the Complainant. He links this allegation to the early passing of two work colleagues arising from the misclassification of their work without the proper safety and medical checks:

“However, the most tragic thing about her previous work is that two workers died due to disregarding the provisions of the law.”

 Another Linkedin Post criticised the Adjudicator who had heard his complaint about being a special category night worker. That decision was appealed to the Labour Court and referred back to the Commission for a de novo hearing as it was determined by the Court not to be legally misconceived. That claim was reheard by this Adjudicator and a decision issued Adj-00057191.

The Complainant in addition to referring that decision on appeal to the Labour Court also referenced that  first WRC decision on LinkedIn and stated:

“Fantastic sentences, but what if the WRC adjudicator can falsify the data in the submitted evidence”

The offending social media post central to this complaint was about the previous HR Director linking her omissions to the death of two colleagues. The Company viewed those comments as gross offensive to the employees in question and to them and alleged that the posts amounted to gross misconduct. That allegation of gross misconduct gave rise to a disciplinary investigation in line with the Company’s procedures.

The Complainant believes that the disciplinary process was unfair, disproportionate and failed to investigate any of his complaints. In essence it was a tick box exercise that had the appearance of being procedurally fair when in fact it had predetermined the outcome.

The Complainant stated that the  LinkedIn Post was not about Keeling’s it was about a HR Director. It also attracted the protections of the Protected Disclosures Act 2014 as the Complainant had a reasonable belief that what he posted was true.

Section 5(1) of the Protected Disclosures Act 2014 defines a “protected disclosure” as a disclosure of relevant information made by a worker. Under section 5(2), information is “relevant information” if, in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and it came to the attention of the worker in a work-related context.

The relevant wrongdoings are defined in section 5(3). The Complainant relies specifically on subsection (d): that the health or safety of any individual has been, is being or is likely to be endangered.

The statutory presumption under section 5(8) of the Act means that the burden of proof rests on the employer to rebut the presumption. It is also the case that the facts as presented by the Complainant, that he worked at night on shift, in a chill room and at times had to lift very heavy weights,  meets a prima facie threshold where he can rely on that statutory presumption in his favour.  This means that the Respondent must rebut the presumption that he had made a protected disclosure on the balance of probabilities.

The Respondent submitted that the Complainant did not make a protected disclosure.

The Respondent stated that the 2014 Act provides a graduated level of requirements for establishing that relevant information is a protected disclosure depending on who the communication is with. Thus, the 2014 Act provides for different requirements depending on whether the communication is to the employer, to a “prescribed person”, to a relevant institution, to a legal adviser, to the Minister and lastly communications in “other cases”.

Disclosure in other cases

10. A disclosure is made in the manner specified in this section if—

(a) it is made otherwise than in the manner specified in sections 6 to 9,

(b) the worker reasonably believes that the information disclosed in the report, and any allegation contained in it, are substantially true, and

(c) the worker—

(i) has previously made a disclosure of substantially the same information in the manner specified in section 6, 7 or 8, as the case may be, but no appropriate action was taken in response to the report within the period specified in section 6A(1)(e), 7A(1)(c), 10C(7)(b), 10D(7)(b) or 10E(1)(c), F34[as the case may be,]

(ia) has previously made a disclosure of substantially the same information in the manner specified in section 7B, or]

(ii) reasonably believes that—

(I) the relevant wrongdoing concerned may constitute an imminent or manifest danger to the public interest, such as where there is an emergency or a risk of irreversible damage, or

(II) if he or she were to make a report in the manner specified in section 7 F35[, 7B] or 8, as the case may be—

(A) there is a risk of penalisation, or

(B) there is a low prospect of the relevant wrongdoing being effectively addressed, due to the particular circumstances of the case, such as those where evidence may be concealed or destroyed or where a prescribed person may be in collusion with the perpetrator of the wrongdoing or involved in the wrongdoing.

A communication to the world at large is, per Section 10(A) of the 2014 Act, a disclosure made in “other cases”. A LinkedIn post is a social media post that is published and visible to most literate social media users with ease.  In order for this to constitute a protected disclosure, the Respondent stated that it must satisfy the criteria prescribed by section 10 of the 2014 Act.

The Respondent argued that in this instant case the Complainant has failed at every hurdle under section 10. Most obviously, section 10 requires the Claimant to reasonably believe that the information disclosed be true.

The requirement for reasonableness permits the WRC to impose a level of objectivity in its assessment of whether the information disclosed is true. In this case, the Respondent stated that the allegations are clearly and objectively untrue, and the Claimant has adduced absolutely no evidence to support the allegations contained in the posts.

The Respondent stated that the Claimant had not established that on the balance of probabilities (a) he committed a protected act when publishing grossly defamatory and untrue statements or at any time on or before this date, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to his alleged penalisation. No informational content within his public posts on a social media platform was contained within them. Instead, there are mere assertions and “opinions”, unsupported by any factual basis. The Respondent therefore respectfully requests that the Adjudication Officer dismisses the claim as unfounded.

The Reasonable Belief Test

Section 10 details additional requirements that must be met where the disclosure is made other than as prescribed at sections 6 and 9 of the Act. Section 10 does provide for the disclosure to be published where:

(c) the worker—

(i) has previously made a disclosure of substantially the same information in the manner specified in section 6, 7 or 8, as the case may be, but no appropriate action was taken in response to the report within the period specified in section 6A(1)(e), 7A(1)(c), 10C(7)(b), 10D(7)(b) or 10E(1)(c), as the case may be,

(ia) has previously made a disclosure of substantially the same information in the manner specified in section 7B, or]

Based on this statutory requirement it has been argued by the Complainant that his disclosure could meet this requirement. Assuming that is so, the test then would be if he reasonably held that belief.

The leading authority on the interpretation of the reasonable belief test is Barrett v Commissioner of An Garda Síochána [2023] IECA 112, in which the Court of Appeal confirmed that the word “reasonable” in section 5(2) introduces an objective standard. It is not a question of what the worker subjectively or genuinely believed; rather, it is whether his belief was based on reasonable grounds and whether a reasonable person would have held the same belief based on the same information. The reasonableness of the belief must be assessed by reference to the facts as known to the worker at the time of the communication.

The Court in Barrett identified the following key principles:

(i)  The communication must disclose some wrongdoing on the part of the employer.

(ii)  The complainant must have had a reasonable belief that the employer was engaged in wrongdoing; “reasonable” connotes an objective standard.

(iii)  The communication must have some informational content.

(iv)  Even if the employer is already aware of the information, the communication may still constitute a protected disclosure if it is drawing the employer’s attention to it.

(v)  The fact that a communication concerns the treatment of the employee making the complaint does not prevent it from being a protected disclosure.

(vi)  The fact that the 2014 Act was not expressly invoked at the time of the communication is not an absolute bar to it being treated as a protected disclosure after the event.

(vii)  What is prohibited by the Act is the penalisation of an employee as a result of having made a protected disclosure.

(viii)  Penalisation means any act or omission that affects a worker to the worker’s detriment and includes disciplining the worker.

(ix)  There must be a connection between the communication and the penalisation.

(x)  A court should be alive both to the possibility that ostensibly legitimate employer actions may in reality be connected to a protected disclosure, and to the possibility that an employer is taking bona fide steps in respect of an employee making unfounded allegations.

The Respondent submits that the Claimant in this instant case refers to an issue raised in 2019 regarding his working hours, which occurred 5-years prior to this posting on LinkedIn. Further, and of importance, the Claimant refers to the untimely and unfortunate deaths of colleagues, both of which occurred outside of the workplace in 2013, 10-years prior to the lodging of this claim, and 5-years prior to his first raising of any issue regarding his hours of work. The Respondent refutes in its totality that the Claimants statements on a public social media network constitute a protected disclosure.

The Act requires that the Complainant have a reasonable belief that what he has communicated is true and that this means applying an objective standard to determine if the belief is a reasonable one. It does not mean that he must prove on the balance of probabilities that it is true. The test to be applied is would a reasonable person with the same information hold the same belief. The facts of this case on balance do not support that the Complainant’s belief that it was a reasonable belief.

The Complainant brought his complaint to the Workplace Commission in 2019 claiming that this employer breached his rights under the Organisational Working Time Act. At the first hearing those claims were rejected as being misconceived. In turn he appealed that decision to the Labour Court who decided that the claims were not legally misconceived.

The term misconceived means that the substantive claim could not possibly succeed.

Section 42 of the Workplace Relations Act 2015 provides for a claim to be dismissed:

42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.

(2) (a) A person whose complaint or dispute is dismissed in accordance with this section may, not later than 42 days from its dismissal, appeal the dismissal to the Labour Court.

(b) A person shall, when bringing an appeal under this subsection, give notice to the Commission in writing of the bringing of the appeal.

(c) A notice referred to in paragraph (b) shall specify the grounds upon which the appeal is brought.

These are legal technical terms and as explained Delaney and McGrath on Civil Procedure 4th Edition 2018 mean:

The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated that “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

The law requires that cases should be heard unless the claim cannot succeed.

The Complainant as already detailed posted on LinkedIn comments linked to that complaint in late 2024. On the facts there is a significant time gap between the alleged wrongdoing and the posting of the allegation. The Complainant was pursuing a claim at the WRC alleging that he was working excessive hours in contravention of the relevant Act. A link was then made with his claim to 2 other employees who had died many years previously and he attributes their early passing to working excessive working hours in breach of the Act. The legal test to be applied is not how the Complainant subjectively experienced his working conditions and hours of work to be unsafe and life threatening, rather based on the information to hand would a reasonable person also hold the same belief. A reasonable person may hold a belief that night work is not good for one’s health; however, more is asserted in this LinkedIn post. What the objective test calls for in this case is would a reasonable person hold the following belief:

“However, the most tragic thing about her previous work is that two workers died due to disregarding the provisions of the law.”

The Complainant believed that his role had been misclassified and that he was in fact a special category night worker:

3) In subsection (2) “special category night worker” means a night worker as respects whom an assessment carried out by his or her employer, pursuant to a requirement of regulations under section 28 (1) of the Safety, Health and Welfare at Work Act, 1989, in relation to the risks attaching to the work that the night worker is employed to do indicates that that work involves special hazards or a heavy physical or mental strain.

At its height the worker prior to his case being ultimately determined may hold a reasonable  belief that he is a special category worker. That is not what the reasonable belief is in this case. The belief is that “is that two workers died due to disregarding the provisions of the law.” What is being said here is that the previous HR Director disregarded the law and that two workers died because of that.

The Complainant has provided no evidence to this tribunal where it could be held that this was a reasonable belief. There is no information about the deaths. The deaths occurred many years previously. There is an assumption that arising from being misclassified that the hours these workers worked led to their early deaths. There is no medical or any factual evidence provided at the hearing to support that opinion. Applying the objective test as detailed in Barrett, I find that a reasonable personwould not have formed the same belief based on the information to hand. What is more probable is that the Complainant believed based on his experience of his working conditions, that he was personally misclassified when he should have been classed a special category shift night worker, that the assessment carried out was contrived and that his health was being affected by being required to work excessive working hours at night.

While the matters linked to this grievance about breaches of the Organisational Working Time Act have not been upheld, that is not the reason for holding that this is not a protected disclosure. A reasonable belief can be held although subsequently shown not be true.

The fact is at Section 5(1) of the Protected Disclosures Act 2014 defines a “protected disclosure” as a disclosure of relevant information made by a worker. Under section 5(2), information is “relevant information” if, in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and it came to the attention of the worker in a work-related context. It is not reasonable to conclude that the hours of work, worked by the two employees who died 10 years previously was caused by the Respondent breaching the Organisational Working Time Act. There is no information presented to this tribunal that would satisfy the objective test as detailed in Barrett. A reasonable person could not have formed that opinion based on the information that the Complainant relied upon.

It is also the case that the Complainant takes issue with the independent occupational health assessment signed off by Dr Gleeson. The Complainant raised his concerns, and they were investigated and the Respondent commissioned an independent assessment of the claim that he was a special category worker. While the Complainant states that his complaints were not fairly examined an alternative view is the Complainant didn’t find the assessment to be acceptable to him.

I must determine that the Complainant did not make a protected disclosure. The Respondent has rebutted the presumption that relevant information posted on the LinkedIn social media site was a protected disclosure.

Unfair Dismissal:

Several matters have been determined by this Adjudicator relating to the Complainant’s claims. It has been determined that he did not make a protected disclosure on LinkedIn and in a related case he was not a Special Category Night Worker. However, those matters were not determined at the time of the dismissal. The Complainant maintains that the procedures followed by the Respondent were flawed and predetermined. The Managers who chaired the hearings failed to properly investigate his allegations and failed to review the relevant law about hours of work and failed to assess the difficult and arduous  nature of his work, while being scheduled on night shifts. The investigation wouldn’t even consider that his job could be a Special Category Night Worker role.

The Respondent has provided detailed minutes of the disciplinary investigation and the appeal. Management who chaired those internal processes gave evidence under oath and where cross examined by the Complainant.

The facts are that an assessment of the Complainant’s role was conducted in 2019 to assess if that role was a special category worker and determined that it was not. The Complainant believes that report was contrived and was based on false information. The Company reject that allegation. The report was completed by an independent occupational health provider.

The role of the Adjudicator is not to reinvestigate the matters now before him, it is to assess if the procedures followed by the Respondent were fair and the sanction proportionate.

The Respondent conducted an investigation and held a fair hearing and the Complainant had the right of an internal appeal. The Complainant was given the right to be represented which he declined. He knew that he was being investigated for gross misconduct for making allegedly very damaging statements on social media about the company and how it treated 2 previous employees resulting in their early deaths. His position was considered but not accepted that the posts were not about the Respondent.

The Complainant also alleged that the investigation and the appeal were predetermined, were not open to a different outcome, that the dismissal sanction was disproportionate and harsh. It is alleged that the Respondent failed to conduct a proper investigation based on the evidence presented to it and the failure to have regard to the Organisation Working Time Act and the obligations on employers to carefully assess the difficulty of the work during night shifts. It is alleged that the failure to independently engage with documentary evidence and the law and to accept one side only made the process a sham.

Redmond in Dismissal Law 3rd edition states at 13.14:

‘Perfect’ procedural justice has been defined as the ideal of a procedure guaranteed to lead to an outcome where justice is identified by some independent criterion. 24 The balance between substantive and procedural justice becomes most crucial in relation to the reasonableness of an employer’s decision to dismiss. Increasingly, procedural justice is being taken for granted by all concerned and the WRC’s function is to decide how exacting its tenets shall be. An employer will be regarded as having fairly dismissed an employee only if it both gave the employee the full benefits of a fair procedure and accorded him his just deserts or established a functional necessity for his dismissal. Section 6(7) of the Unfair Dismissals Act 1977 further emphasises the importance of reasonableness. In determining if a dismissal is unfair regard may be had:

(a)to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

At face value and based on the evidence of the managers involved in the process and the evidence given by the Complainant under cross examination, along with documentary evidence such as the minutes of the investigation and appeal, I find that on balance that the process was substantially fair.

The Respondent did seriously engage with the Complainant’s grievance about being a special category night worker. This grievance was not ignored. What the Complainant finds unfair is that the Respondent is not willing to recommission a new report and that he classes this as not engaging with his grievance or with the law. However, the Respondent has comprehensively rebutted that assertion on the documents opened with regard to the assessment and the evidence of Dr Gleeson, which were investigations conducted having regard to the relevant sections in the Act by a competent assessor.

In McKelvey v Irish Rail [2019] IESC 79 Clarke CJ stated that the standard for an internal disciplinary process does not have to match the court process; however, it must be fair.

7.4 It should be recalled that an internal disciplinary process such as this is not a criminal trial. While the process must be fair, the formal rules of evidence or the procedures which govern either criminal or civil proceedings do not necessarily apply.

The matter before the internal hearings was a posting that by any normal standard made very serious allegations that the Respondent had contributed to the deaths of two colleagues:

“However, the most tragic thing about her previous work is that two workers died due to disregarding the provisions of the law.”

While that post was about a past employee it was also about the Respondent and the reliance by the Complainant that it was about a person and nothing to do with the Respondent is not credible. The previous HR manager is an employee on a contract of service and her actions along with others are conducted on behalf of the Respondent. She is not an independent agent.

Was the conduct of the investigation reasonable?

And at 13.16 Redmond states:

The WRC will scrutinise an employer’s conduct very closely where the employer is faced with a problem requiring investigation. In Dunne v Harrington 26 its predecessor, the EAT, declared that an employer may investigate either:

‘(a) personally in a fair and reasonable manner, ie as fully as is reasonably possible, confronting the “suspected” employee with “evidence”, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce “counter evidence” 27 or he may:

(b)rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting “evidence”, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (ie, the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.’ 28

On balance I find that the employer conducted the investigation and appeal fairly and considered the case put to them by the Complainant and clearly laid out the allegations being made against him and he was fairly heard and was given the right to be represented. The fact that they did not agree with the Complainant’s allegations does not mean they had no regard to them. An independent report had been commissioned earlier. The Complainant had an expectation that his case should be reassessed by another independent assessor as he believed that the first report about special category work was falsified.

The case made out by the Complainant was considered and determined to be weak based on evidence. The Complainant held very strong opinions about the law and how it was being misinterpreted. He also held a strong conviction that the independent assessment carried out in 2019 was a sham and did not honestly and independently assess the difficulty of his work. He also held the view that his employer did not provide adequate annual medical health checks for night workers. However, the crucial point both at the internal hearings and the Adjudication of this complaint is that no independent evidence was called to support these strongly held convictions. The alleged assertions are not facts. They may be honestly held that does not make them correct and when open to objective scrutiny, I have found them to be unsubstantiated based on the rules of evidence.

And at 13.22 Redmond cites:

The High Court in Loftus and Healy restated the issue thus. It was not a question of whether the ex-employees were deprived of procedures to which they were entitled but:

‘whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish ... [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal

I find that there has been no significant procedural irregularity that would make the process flawed to such an extent that it called into question the basis of the dismissal decision.

The next question that arises is the sanction of dismissal proportionate?

In Bank of Ireland v Reilly [2015] IEHC 241 the following test in relation to the obligations of reasonableness that an employer is required to apply in accordance with Section 6(7) of the 1977 Act (as amended).  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.

In assessing proportionality, the Complainant’s working time concerns had been investigated internally. The LinkedIn posts were published 5 years after those concerns were first raised and examined seriously by the Respondent and more than 10 years after the deaths to which the posts referred. Despite having access to escalate his claim to the Commission and on appeal to the Labour Court when dissatisfied with the internal examination of his grievance, which are hearings held in public, he chose to make serious allegations on social media platform that was one sided and viewed by the Company to amount to criminal allegations without any foundation of truth. That act ruptured the trust and confidence that is a fundamental and implied term of any employment contract. It is the rupturing of that term that in turn makes the decision fair and proportionate.  

I note the learned judges remarks at paragraph 56 in Bank of Ireland v Reilly [2015] IEHC 241:

56. In assessing the reasonableness of the employer’s conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response

The statements made by the Complainant go to the heart of what is described as the trust and confidence obligation that the employer and employee must uphold. The statements made by the employee are extreme and unfounded. Those comments made to the world at large are damaging to the company’s reputation. Based on the balance of probabilities test it is proportionate to class what was published as gross misconduct and that the decision to dismiss is within the range of reasonable responses.

Minimum Notice:

The Act states the following:

Right to terminate contract of employment without notice.

8.—Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

The Complainant stated that in his form that After 16 years, there would have been an 8-week notice period.

It is the Respondent’s position that it is not required to provide the Claimant with payment in lieu of notice in situations of serious/gross misconduct as per the Company’s disciplinary policy and in line with Section 8 of the Minimum Notice and Terms of Employment Act, 1973.

As I have determined that the decision to terminate was well founded arising from gross misconduct the employer as per section 8 of the Act was not obliged to give notice. Therefore, I must find that the complaint is not well founded.

CA-00068358-001, Unfair Dismissal:

I find that the dismissal of the Complainant was not unfair. The Respondent conducted a fair investigation and appeal. The decision to dismiss was within the range of reasonable responses open to a reasonable employer having regard to the gravity of the conduct. This complaint is not well founded.

CA-00068358-002, Protected Disclosure:

I find that the Complainant did not make a protected disclosure within the meaning of the Protected Disclosures Act 2014. The Respondent has rebutted the statutory presumption on the balance of probabilities. A reasonable person would not have held the same belief as the Complainant, assessed objectively and by reference to the information available at the time. This complaint is not well founded.

CA-00068358-003, Minimum Notice:

The Complainant was dismissed for gross misconduct. Section 8 of the Minimum Notice and Terms of Employment Act 1973 provides that an employer may terminate a contract of employment without notice because of misconduct. As the dismissal was for gross misconduct, no minimum notice payment is owed. This complaint is not well founded.

Unfair dismissal. Gross misconduct. Social media. LinkedIn. Protected disclosure. Reasonable belief. Band of reasonable responses. Proportionality. Organisation of Working Time Act. Special category night worker. Minimum notice