SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
A.T. DONOVANS LTD NEILSTOWN
(REPRESENTED BY PENNINSULA)
- AND -
Chairman: Mr Geraghty
Employer Member: Mr Marie
Worker Member: Mr McCarthy
1. Appeal Of Adjudication Officer Decision No(S) ADJ-00009250
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 24 August 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 1 May 2019. The following is the Court's Determination:
This is an appeal by Mr. Flynn, ‘the Complainant’, of a decision by an Adjudication Officer, (AO), of the Workplace Relations Commission, (WRC), that his dismissal by A. T. Donovan Ltd., ‘the Respondent’ was not unfair.
The Complainant is a butcher and he commenced working with the Respondent’s Butcher Shop and Deli in July 2008. He was dismissed in May 2017.
In February 2016, there was an incident involving the Complainant and the son of the owner of the Respondent which led to a complaint by the Complainant. Following an investigation by the owner, which was inconclusive in determining the facts, both parties were issued with informal written warnings about the dignity at work charter in the employee handbook.
In April 2016, a complaint was made against the Complainant by a female colleague, KMcG, who alleged that the Complainant had refused to assist her in the shop, had prevented a colleague from assisting her and she alleged also that she had heard the Complainant say that ‘she’s looking out the f*****g window all day. F*****g bone idle women’.
The following day another female colleague, IC, made a separate complaint against the Complainant, alleging that he had told another colleague to tell her to ‘f**k off’. The two incidents were investigated by the owner of the Respondent. Following a disciplinary hearing, the Complainant was issued with a written warning. He exercised his right to appeal and the Respondent engaged an outside company, Graphite HRM, to hear the appeal.
Prior to the appeal being heard, in May 2016, KMcG lodged a further complaint against the Complainant to the effect that the Complainant had placed a notice on the wall which recorded her movements, including every time she left the shop floor. The Respondent investigated this allegation by gathering witness statements. The Complainant was then suspended with pay, pending a full investigation. The Complainant’s Solicitors wrote to the Respondent on 31 May 2016 and the Respondent engaged another outside party, Mr. Philip Brennan of TMI Business Management, to conduct the disciplinary hearing. Following the hearing, the Complainant received a final written warning to remain on his file for 12 months. The Complainant appealed this decision and the Respondent engaged Graphite HRM to hear the appeal.
In August 2016, IC made two further complaints against the Complainant, firstly that he had told KMcG not to talk to him and to ‘do the mince herself’ and then, separately, that he had refused to assist IC in processing a payment.
Then a further incident occurred between the Complainant and the owner of the Respondent which began with a row regarding the address to which the Complainant should send his appeal. The Complainant then said that he was unwell and would have to go home. He requested his wages. The Respondent alleges that when there was a difficulty in meeting this request then and there, the Complainant stated that he felt better but, for health and safety reasons, he was told to go home. He refused to do so, resulting in his physical removal from the premises which led to the Complainant calling the Gardai, who, according to the Respondent, advised that this was an internal matter.
When the Complainant sought to return to work, the Respondent required him to provide a fitness to resume certificate, which he provided subsequently.
A further complaint against the Complainant was made by KMcG a few days later to the effect that he had again refused to assist her in cutting meat.
On 3 November 2016, the Complainant was again suspended for failing to assist IC.
On his return to work, the Respondent was reminded of the warnings on his file and was asked to treat his colleagues with respect. Written clarity was provided also regarding the reason for the warnings and the Complainant’s duties and responsibilities.
On 27 March 2017, Graphite HRM conducted the appeals hearings and issued a report on 2 May 2017 up-holding the decisions reached, albeit with some observations regarding some ‘minor procedural flaws’..
The Complainant states that he had sought detailed clarity from Graphite HRM in advance of this date as to what, exactly, was required of him in terms of his attendance at work and his attendance at the hearings. He was advised to attend work and to return to work following the hearings, which were scheduled to commence at 11am..
On the morning concerned, it is accepted by both parties that the Complainant attended work at 8 am and then at about 8.10 am, he stated that he was leaving and was told not to do so by the owner of the Respondent who alleges that the Complainant refused this legitimate instruction. On his return to work that day, the sister of the Respondent’s owner invited the Complainant to an investigation meeting. He was invited subsequently to attend a disciplinary hearing conducted by the wife of the Respondent’s owner. This took place on 28 April 2017. On 6 May 2017, a decision was issued. The Complainant’s explanation was deemed to be unsatisfactory and he was dismissed. He was advised of his right to appeal and he did so. The Respondent engaged an outside firm of Solicitors to hear the appeal. The appeal up-held the decision to dismiss.
The Complainant referred a case to the WRC. The AO held that the dismissal was not unfair and the Complainant appealed this decision to the Court.
The Complainant was dismissed because of his conduct. S. 6(4) (b) of the Unfair Dismissals Act states that a dismissal is not unfair on account of ‘the conduct of the employee’.
The Complainant was disciplined for inappropriate conduct towards colleagues, including swearing at colleagues and taking inappropriate notes documenting a colleague’s movements and then he failed to follow a reasonable management instruction. There was no excuse for this failure. If the Complainant had arrived late on the day, any cost was being borne by the Respondent.
The Respondent adhered to best practice as per their Employee Handbook and in line with S. I. 146/2000 in affording the Complainant the benefit of fair procedures. He was at all stages advised of the allegations and given the opportunity to put his case. He was advised of his right to be accompanied and he was afforded the right of appeal.
InFairbrother v. Steifel (Ireland) Ltd. (UD665/1985)the Employment Appeals Tribunal, (EAT), stated that the only issue for the Tribunal to determine was whether the Respondent acted reasonably in dismissing and inLooney v Looney UD843/1984the EAT had decided that its role was to consider what a reasonable employer would do based on the facts. The Respondent had acted reasonably and responsibly in the instant case.
While there was some delay in hearing the appeals, the effect was not to render the warnings invalid or procedurally flawed. InHartnett v. Advance Tyre Company Ltd t/a Pitstop (2013) IEHC 615it had been held that in some cases even where there was a breach of procedures, where the overall evidence was so clear, it would be absurd to set aside a dismissal. Likewise, inRowland v. An Post (2017) IESC 20it was held errors of procedure can be corrected and that consideration of the validity of the outcome of a disciplinary process needs to look at the entirety of the case and to determine if, having regard to the principles of constitutional justice, the ultimate conclusion can be sustained.
In the alternative, the Complainant secured employment just nine days after his dismissal. He has, therefore, mitigated his losses, which are minimal.
Insufficient account was taken of witness statements by three colleagues that were important to the Complainant’s version of the events that gave rise to disciplinary action.
In relation to the first written warning, IC could not have seen that the Complainant was the person who had used foul language and the person to whom the comments were allegedly made gave a very brief statement. The Respondent did not investigate the matter properly. Indeed, witness statements highlighted that there was a row going on between IC and the person to whom the remark was allegedly made yet this was never investigated.
In relation to the second warning, the only two witnesses to the allegations had denied them yet the Respondent gave a written warning.
In relation to the final warning and the decision to dismiss, all instructions given by the person hearing the appeals were adhered to and it was reasonable for the Complainant to leave in plenty of time on a day when there was a bus strike, to get from Neilstown to East Wall and to have time to prepare for the hearings. The Complainant returned to work, as instructed, in the afternoon.
There were procedural shortcomings on the part of the Respondent. There was a significant delay in appeals being heard. The Complainant was advised, initially, to appeal the decision of the first written warning to Mr. Brennan who had decided to issue that warning.
There had been a good working relationship until the incident with the son of the owner.
The disciplinary process was elongated deliberately by the Respondent.
The Respondent had shown bias throughout the various procedures and decisions were taken by members of the owner’s family.
The shop manager, the owner and the owner’s sister had all carried out investigations, for which they had no training. Likewise, the owner’s wife had no training to qualify her to carry out the disciplinary hearing that led to his dismissal.
The issue was one of principle not of compensation, re-instatement or re-engagement. The Respondent had offered him substantial money to leave but, on principle, the Complainant had refused. The Complainant had been treated badly.
Mr. Pat Donovan
Mr. Donovan explained that he was the owner of the Respondent. He outlined his version of each of the incidents set out in the Respondent’s submission. He stated that, although the business was going through difficult times, he had endeavoured to act properly in respect of the various incidents, by engaging Mr. Brennan to conduct a disciplinary process, by engaging Graphite HRM to hear appeals and by engaging Mr. Carroll, Solicitor, to deal with the dismissal appeal.
He had not taken the decision to dismiss. That decision was taken by his wife, Pauline, following an investigation by his sister, Joan.
Under cross examination, he accepted that there had been a mistake in telling the Complainant to appeal to Mr. Brennan but this had been rectified. He accepted also that there had been delays in the appeals process but denied that he had chosen to elongate these processes.
He disputed the Complainant’s point that IC could not have known he had used foul language and said that she was only a few feet away from him at the time not upstairs as the Complainant continued to argue strongly.
In relation to witness evidence, under cross examination, he noted that one of the witnesses cited by the Complainant had, indeed, disputed one aspect of the complaint made but had made no reference to other aspects that he had to take into account in deciding on the first written warning. A second witness cited by the Complainant had not been present to witness the actual matters that had given rise to the complaint.
He stated that he had not discussed the dismissal decision with his wife.
Ms. Pauline Donovan
Ms. Donovan is the wife of Pat Donovan.
She gave evidence regarding her decision to dismiss the Complainant.
Following the refusal of the Complainant to remain in work when instructed to do so on the morning of his appeals of the earlier warnings, her sister-in-law, Joan, had conducted an investigation. This led to a disciplinary hearing. Ms. Donovan testified that she had conducted the hearing. The Complainant had been reminded that there were two written warnings on his file.
The Complainant had referred at the hearing to his attempts to get total clarity from Graphite HRM of what was expected of him. He had indicated that he felt it was ok for him to leave. He had objected to Ms. Donovan conducting the hearing and to her daughter taking notes.
She formed the view that it was evident that there was a breakdown in the relationship with the Complainant but she tried to give him the benefit of the doubt as he had a young family. However, she felt that there was no going back and that the Complainant really no longer wanted to be there. He had failed to follow instructions, knowing that with the written warnings, this could lead to dismissal.
She did not discuss her decision with her husband. She took no part in the appeal process.
Under cross examination, she denied bias. She stated that she had taken on the task as they could not afford to engage another outsider. She did not accept that any absence of detailed instructions entitled the Complainant to refuse to remain in work when instructed to do so.
6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
( a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,
(aa) without prejudice to paragraph (a), the employee —
(ii) being in the employment of the employer concerned in the grade, group or category to which the trade dispute, referred to in that section, relates, and
(iii) having provided evidence or other information or assistance to any person, for the purposes of the examination of that request by the Labour Court or in respect of an investigation made by it under that Act pursuant to that request,
(b) the religious or political opinions of the employee,
(ba) the employee having made a protected disclosure,
(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,
(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,
(dd) the exercise or proposed exercise by the employee of the right to parental leave, force majeure leave under and in accordance with theParental Leave Act, 1998, or carer’s leave under and in accordance with the Carer’s Leave Act, 2001, ]
(e) the race, colour or sexual orientation of the employee,
(ee) the age of the employee,
(eee) the employee’s membership of the travelling community,
(f) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith,
(g) the exercise or proposed exercise by the employee of the right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence, within the meaning of Part IV of that Act, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted bysection 8of the Maternity Protection (Amendment) Act 2004), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted bysection 9of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act,
(h) the exercise or contemplated exercise by an adoptive parent of the parent ’ s right under the Adoptive Leave Acts 1995 and 2005 to adoptive leave or additional adoptive leave or a period of time off to attend certain pre-adoption classes or meetings,
( i ) the exercise or proposed exercise by the employee of the right under the Paternity Leave and Benefit Act 2016 to paternity leave or transferred paternity leave within the meaning of that Act,
(2A)Sections 3and4of this Act do not apply to a case falling within paragraph ( f ), ( g ) , ( h ) or ( i ) ] of subsection (2) of this section and, for the purposes of those paragraphs, ‘ employee ’ and ‘ adopting parent ’ include a person who would otherwise be excluded from this Act by paragraph ( a ), ( c ), ( f ) or ( g ) ofsection 2(1) of this Act.
(2B) Sections 3 and 4 do not apply to a case falling within subsection (2)( dd ) and, for the purpose of that paragraph, ‘ employee ’ includes a person who would otherwise be excluded from this Act by paragraph ( a ), ( c ), ( f ) or ( g ) of section 2(1).
(2C) Sections 3 and 4 do not apply to a case falling within subsection (2)( dd ) and, for the purpose of that paragraph, ‘ employee ’ includes a person who would otherwise be excluded from this Act by paragraph ( a ), ( b ), ( c ), ( d ), ( e ), ( f ), ( g ), ( h ), ( i ) or ( j ) of section 2(1).
(2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).
(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—
(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or
(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,
then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
(5) ( a) Without prejudice to the generality of subsection (1) of this section, the dismissal by the Minister for Defence of a civilian employed with the Defence Forces undersection 30(1) ( g) of theDefence Act, 1954, shall be deemed for the purposes of this Act not to be an unfair dismissal if it is shown that the dismissal was for the purpose of safeguarding national security.
( b) A certificate purporting to be signed by the Minister for Defence and stating that a dismissal by the Minister for Defence of a civilian named in the certificate from employment with the Defence Forces undersection 30(1) ( g) of theDefence Act, 1954, was for the purpose of safeguarding national security shall be evidence, for the purposes of this Act, of the facts stated in the certificate without further proof.
(6) 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.
(7) 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
(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to insection 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) ofsection 7(2) of this Act.
Redress for unfair dismissal.
7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) (i) 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 undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.
(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.
(2) Without prejudice to the generality of subsection (1) of this section, in determining theamount of compensation payable under that subsection regard shall be had to—
(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
(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,
(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,
(d ) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) ofsection 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,
(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and
(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.]
(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee —
(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or
(b) under the Income Tax Acts arising by reason of the dismissal,
shall be disregarded.
(2B) Where —
(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and
(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,
the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.
(3) In this section—
“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;
“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.
At the outset, the Court noted that there was minimal loss to the Complainant arising from the dismissal as he had secured employment nine days later. The Complainant represented himself. Therefore, in line with the usual practice, the Court went the extra steps to assist him in presenting his case. In that regard, the terms of s.7 of the Unfair Dismissals Act, see above, were brought to his attention and he was advised thatifhis case succeeded, the Court could award re-instatement, re-engagement or income losses and that the maximum losses available in the circumstances of the case, would be 4 weeks’ pay. The Respondent’s representative offered to consult with her clients. The Complainant stated that he was not interested, that he believed he had been treated badly and he wanted the Court to so find. He stated that he had turned down a substantial offer from the Respondent to leave the employment. It emerged in the course of the hearing that the parties had utilised the conciliation services of the WRC and, in the course of those proceedings, the owner of the Respondent gave evidence that he had been advised that the Complainant wanted to leave and would accept a financial settlement. He stated that this was the context of the offer.
In most instances, these background facts to the Court’s consideration would be of no great significance. However, in the instant case, it is clear that the Complainant has a deep- rooted sense of grievance with the Respondent. The Court, therefore, needs to make clear that its role is to apply the law to the case, it is not the role of the Court to seek to assuage a sense of grievance.
In doing so, the Court has to consider if the procedures used to reach a decision to dismiss were fair. InPacelli v. Irish Distillers Ltd, (2004) ELR 25, the EAT stated that any investigation has to have regard to all facts, issues and circumstances. The Complainant asserts that witness evidence supportive of his case was not taken into account. However, in evidence, as set out above, the owner of the Respondent dealt with this point. It would have been preferable if the outcomes of the disciplinary hearings had been explained more clearly. There was a direct conflict of evidence in the instance that gave rise to the first written warning. As McGuinness J observed inDempsey v. Tobin (unreported) 2005in such circumstances the decision maker should state why one witness was believed over another. However, in evidence the owner of the Respondent noted that this conflict only formed part of the events that gave rise to the disciplinary process and to the decision to serve a written warning and this is noted by the Court.
The Complainant states that his version of events was not given equal weight in the Respondent’s consideration of each of the incidents that gave rise to disciplinary action. This is an important point. The EAT noted inGearon v. Dunnes Stores Ltd UD367/1988that a worker has the right to have their submissions listened to and evaluated. Several aspects weigh in favour of the Respondent’s claim to have acted fairly in this regard. The Complainant was afforded the right to representation at all stages of all processes. One of the disciplinary processes was conducted by an outside party at the expense of the Respondent and the Complainant was afforded two opportunities of appeal to outside parties at different times in respect of separate decisions again at the expense of the Respondent. The Court finds it plausible, therefore, for the Respondent to claim that they had taken steps to ensure the fairness of procedures and a high level of objectivity in decision making.
However, the ultimate decision to dismiss was taken by a family member of the Respondent. This raises issues for consideration regarding any potential for bias, given the background. The test to be applied is, as quoted by the Respondent, that applied inLooney v. Looney UD83/1984,that built on an earlier observation by the EAT inBunyan v United Dominions Trust (1982) ILRM 404, which requires the Court to consider what a reasonable employer would have done in the circumstances. As Lord Denning put it inBritish Leyland UK Ltd v. Swift (1981) IRLR 91’…if a reasonable employer might have dismissed him, then the dismissal was fair’. This concept was expanded upon inAbdullah v. Tesco Ireland plc UD1034/2014in which the EAT stated;
‘What is required of the reasonable employer is to show that s/he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate’
In the circumstances of the instant case, the Court, having heard the parties, is satisfied that the Respondent gave every opportunity to the Complainant to remain in their employment and that he was not dismissed until a lengthy list of issues had arisen that warranted investigations which led, in turn, to disciplinary action. It was the cumulative effect of the various incidents that led to the Respondent’s decision, culminating in an almost inexplicable action by the Complainant in refusing a reasonable instruction by his employer at a time when he was subject to two written warnings.
While there were some minor issues about details of the processes used by the Respondent, including some delays and a mistaken suggestion that an appeal should be addressed to the person who had decided on disciplinary action, none had any material impact on the fact that the relationship had broken down. As noted inMeath County Council v. Creighton UD11/1977and inCarr v. Alexander Russell Ltd (1976) IRLR220‘An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee’
(see p281 of ‘Redmond on Dismissal Law’. Bloomsbury, 3rdEdition)
In the view of the Court, it was a genuine belief of the employer, based on reasonable grounds, that the overwhelming responsibility for the breakdown in the employment relationship was the fact that the actions of the Complainant were giving rise to sporadic incidents that any reasonable employer would be entitled to regard as unacceptable when taken as a whole. Furthermore, the Respondent had made reasonable efforts to ensure procedural fairness.
It is not for this Court to speculate if any of the incidents on their own would have warranted dismissal. The fact is that the cumulative effect of the Complainant’s own actions made it reasonable for the Respondent to decline to continue to employ him.
The decision to dismiss was reasonable and proportionate.
The decision of the Adjudication Officer is upheld.
Signed on behalf of the Labour Court
13 May 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.