UFD Misconduct
Cases
BHS v Burchell
[1980] ICR 303, (1978) IRLR 379
Arnold J
“What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the Tribunal would itself have shared that view in those circumstances. It is not relevant, as we think, for the Tribunal to examine the quality of the material which the employer had before him, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’ as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.’ and
‘What one there finds, as it seems to us, is the undisputed fact that management did form the belief that Miss Burchell was guilty; that the matters which went into that belief were what had emerged from the examination of the docket signing pattern, what Mrs L had said (though very unspecifically), and Miss Burchell’s denial of the equally unspecific retailing of
that to her; and the matter of the sun-glasses, where she had accepted, according to the evidence as found by the Tribunal, that she knew that Mrs L was getting the goods too cheap. The question which had to be determined by the Tribunal was, as we think, quite simply whether a reasonable management could find from those three matters material for a belief that this young lady had done what she was suspected of doing. It seems to us impossible to answer that question except in the affirmative.
What seems to have happened here, as we read the Decision, is that having, as we have already mentioned, started out by stating the function of the Tribunal with accuracy, they then were in the course of their observations or considerations – perhaps very humanely with some degree of sympathy with the young applicant, not professionally represented, and an anxiety to see that she got a fair crack of the whip – departing from the task which they had set themselves, and that they embarked upon an independent evaluation of the evidence, not for the purpose of seeing whether management could reasonably have drawn the conclusion which management in fact drew, but whether that was by an objective standard a correct and justifiable conclusion. And moreover they were led into examining the matter from the point of the standard of proof which could be derived from the matters which had been stated, which were known to management, in order to see whether the conclusion was justified. There are extensive citations from the well known case of Hornal v Neuberger Products Ltd (1956) in which the Court of Appeal considered in great particularity different standards of proof – or, perhaps more accurately put, whether there was a different standard of proof – in a civil case on the one hand and in a criminal case on the other. That, as we think, had absolutely nothing whatever to do with the proper task of the Tribunal, which had throughout to do that which this Tribunal initially embarked on doing, which was to examine the reasonableness or otherwise of the conclusion reached by management.
They also, it seems to us, became confused along the line between the two somewhat distinct tasks of investigating whether the conclusion of management was a reasonable conclusion on the basis of the material which they had before them and whether, in assembling that material, management had carried out the sort of investigation which a reasonable management could have regarded as sufficient. At the end of the day, no doubt, the two things run close and parallel; but they are distinct.’
W. Devis & Sons Ltd v Atkins
[1977] UKHL 6
Lord Diplock:
“The question in every case is whether the employer acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee and it has to be answered with reference to the circumstances known to the employer at the moment of dismissal.
“If an employer thinks that his accountant may be taking the firm’s money, but has no real grounds for so thinking and dismisses him for this reason, he acts wholly unreasonably and commits the unfair industrial practice of unfair dismissal notwithstanding that it is later proved that the accountant had in fact been guilty of embezzlement. Proof of the embezzlement affects the amount of the compensation, but not the issue of fair or unfair dismissal”.
I will deal later with the question whether such proof would affect the amount of compensation to be paid.
In St. Anne’s Board Mill Co. Ltd. vs. Brien[4] Griffiths J. applied the test formulated by Donaldson J. but thought that the question whether the employer had acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee had to be answered with reference not only to the circumstances known to the employer at the moment of dismissal, but also with reference to circumstances of which he ought reasonably to have known at that time. He held that it was not permissible to take into account circumstances which had come to light after the dismissal, of which the employers neither knew or reasonably ought to have known in deciding whether the employers behaved reasonably at the time of dismissal.
In my opinion it is not the case that an employer can establish that a dismissal was fair by relying on matters of which he did not know at the time but which he ought reasonably to have known. The Schedule does not so provide. If, however, the reasons shown appear to have been a sufficient reason, it cannot, in my opinion, be said that the employer acted reasonably in treating it as such if he only did so in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient.
The decision of the Court of Appeal in Abernethy vs. Mott, Hay and Anderson[5] was on the 1971 Act. Lord Denning M.R. said that the reason shown for the dismissal “must be a reason in existence at the time when he is given notice. It must be the principal reason which operated “on the employer’s mind.” He went on to say that it must be made known to the man before he is given notice or told to him at the time. I do not see anything in the Act which makes it a condition of fair dismissal that the man dismissed must know before he is given notice or told at the time that he is given notice the reason for it. I prefer the view of Cairns L.J. who said,
“A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, that is no doubt evidence, at any rate as against him, as to the real reason, but it does not necessarily constitute the real reason. He may knowingly give a reason different from the real reason out of kindness…”
In Merseyside and North Wales Electricity Board vs. Taylor[6] O’Connor J. held that the tribunal had erred in considering matters which had occurred subsequent to the dismissal. He said that those matters could not be relevant in considering whether the employer acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee.
In Da Costa vs. Optolis[7], however, Phillips J. held that evidence of irregularities unknown to the employers at the time of the dismissal was admissible on the issue whether or not the dismissal was fair. I do not think that this was right, for those irregularities had no bearing on the dismissal and could not affect the question whether the employers had acted reasonably in thinking that the reasons they had then were a sufficient ground for dismissal.
These observations in these cases which I have cited except those of Phillips J. in the last mentioned case all support the conclusion to which I have come on consideration of the statutory provisions. It follows that the tribunal, Phillips J. and the Court of Appeal in the present case were in my opinion right in deciding that the evidence of misconduct discovered since the dismissal was irrelevant and inadmissible on the issue whether the employers had acted reasonably in treating the reason for which they had dismissed the respondent as a sufficient reason for doing so. For that misconduct, if it occurred, cannot have influenced the employers’ action then.
If it were the case the consequence of so holding, that an employee guilty of grave misconduct successfully concealed up to the moment of his dismissal was under the Schedule entitled to substantial compensation, that would indeed be a powerful reason for seeking to give paragraph 6(8) a different construction. In Attorney-General vs. Prince Ernest Augustus of Hanover[8] it was said that it was wrong to consider one section of an Act in isolation and I must therefore consider the question whether that construction of paragraph 6(8) has that consequence in the light of the other provisions of the Schedule.
Before doing so, however, I should point out that it is not clear from the decision of the tribunal whether they would have held the dismissal unfair if it had not been for the failure to give the respondent at any time before his dismissal a clear warning that his employment was in jeopardy. They clearly attached importance to that. Paragraph 133 of the Code of Procedure approved by Parliament in 1972 stated among other things that normally there should be an oral warning or in the case of more serious misconduct a written warning setting out the circumstances, and paragraph 3 of the Schedule entitles the tribunal to take into account that paragraph of the Code when deciding whether a dismissal was or was not fair.
It does not follow that non-compliance with the Code necessarily renders a dismissal unfair, but I agree with the view expressed by Donaldson J. in Earl vs. Slater and Wheeler (Airlyne) Ltd.[9] that a failure to follow a procedure prescribed in the Code may lead to the conclusion that a dismissal was unfair, which, if that procedure had been followed, would have been held to have been fair.
Section 106(5) of the 1971 Act and paragraph 17(3) of the first Schedule to the 1974 Act both say that if the dismissal is held to be unfair and the tribunal does not recommend re-engagement or its recommendation as to re-engagement is not complied with the tribunal “shall” make an award of compensation. Despite this provision, in Earl vs. Slater and Wheeler (Airlyne) Ltd. the tribunal held that the unfairness of the dismissal due to the employers’ failure to give their employee an opportunity of dealing with the allegations against him had caused the employee no loss. Donaldson J. expressed the opinion that there was under the 1971 Act no room for an award of nominal compensation and that as the tribunal had found the employee had suffered “no conceivable injustice”, they must have assessed the compensation as nil. The court held that the claim for compensation was rightly dismissed and so dismissed the appeal.
…….Phillips J. thought there was an inconsistency in finding a dismissal unfair and then not awarding compensation. He said the tribunals would be wise before so holding, to consider whether to do so involved a basic inconsistency. He referred to Kemp vs. Shipton Automation Ltd.[15], where the opinion was expressed that to award less than 20 per cent (i.e., a contribution of more than 80 per cent) was likely to be seen as verging on the inconsistency and that an employment appeal tribunal would feel free to vary the tribunal’s award:
“if it is satisfied that it is based on a wrong principle, e.g. is inconsistent with the finding of unfair dismissal”.
In Courtney vs. Babcock & Wilcox (Operations) Ltd.[16] Lord Macdonald said that they would wish to reserve the position in Scotland as to the suggestion that the apportioned award of compensation should not be less than 20 per cent. “This”, he said, “savours of a tariff and is contrary to the broad jury approach normally adopted in Scotland in matters of this nature.”
Phillips J’s. observations as to the alleged inconsistency were related it would apear only to paragraph 19(3), but a man may bring about his dismissal wholly by his own misconduct and yet as I have indicated that dismissal may be unfair through failure to warn him that his employment was in jeopardy. In such a case, and there may be others, there is no inconsistency and in such a case, whether it is considered under paragraph 19(1) or 19(3), the just and equitable award might be one of nil compensation. I can see no justification for the assertion that an award of compensation should be less than 20 per cent.
Having considered these authorities and the statutory provisions it is in my opinion clear that in assessing compensation the tribunal is entitled to have regard to subsequently discovered misconduct and, if they think fit, to award nominal or nil compensation.
It is not therefore necessary to strain the language of paragraph 6(8) so as to avoid a result which Parliament cannot possibly have intended, namely, that a dishonest employee who has cheated his employers and has successfully concealed his defalcations up to the time of his dismissal, whose conduct, if known, would justify his summary dismissal, should in addition to the proceeds of his dishonesty, obtain “compensation” from his employers.
There are two matters which I wish to add. The first is that it must not be inferred that the respondent was guilty of any misconduct. The allegations as to that remain to be proved. The second is that the respondent who was not represented before this House, lost nothing thereby. Mr. Peter Scott appeared as amicus curiae and made every point which could be made in favour of the respondent clearly and concisely and I would like to express my thanks to him for his helpful and cogent argument.
In my opinion the tribunal was right to refuse to hear the evidence of misconduct when they did and I would dismiss the appeal.
Procter v British Gypsum Ltd
[1991] UKEAT 535_89_2407
MR JUSTICE WOOD
By an Originating Application dated 9th December 1988 Mr Procter alleged that he had been unfairly dismissed by his employers, British Gypsum Ltd, on the basis that the decision to dismiss was inconsistent with previous similar incidents.
There are three cases to which we were referred and which are the three principal cases relevant to this issue. The first is THE POST OFFICE v. FENNELL [1981] IRLR 221. This case establishes that it is open to an Industrial Tribunal to classify as unfair a dismissal which demonstrates inconsistency on the part of the employer even though in any every respect the employer’s actions have been reasonable. It also stresses as indicated in the judgment of Lord Justice Brandon that it was for the Industrial Tribunal to say what weight they attach to the evidence and that inconsistency was essentially a question of fact for the Industrial Tribunal.
The second case is HADJIOANNOU v. CORAL CASINOS LTD [1981] IRLR 352. The facts of that case are not particularly material but its importance is in the guidance given by this Court presided over by Mr Justice Waterhouse in paragraphs 24, 25 and 26 –
“24 In resisting the appeal, counsel for the respondents, Mr Tabachnik, has submitted that an argument by a dismissed employee based upon disparity can only be relevant in limited circumstances. He suggests that, in broad terms, there are only three sets of circumstances in which such an argument may be relevant to a decision by an Industrial Tribunal under s.57 of the Act of 1978. Firstly, it may be relevant if there is evidence that certain categories of conduct will be either overlooked, or at least will be not dealt with by the sanction of dismissal. Secondly, there may be cases in which evidence about decisions made in relation to other cases supports an inference that the purported reason stated by the employers is not the real or genuine reason for a dismissal. Mr Tabachnik illustrates that situation by the argument advanced in the present case on behalf of the appellant, that the general manager was determined to get rid of him and merely used the evidence about the incidents with customers as an occasion or excuse for dismissing him. If that had been the case, the Industrial Tribunal would have reached a different conclusion on the appellant’s complaint but they considered the submissions about it and rejected them. Thirdly, Mr Tabachnik concedes that evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case, that it was not reasonable on the part of the employer to visit the employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.
25. We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that Industrial Tribunals would be wise to scrutinize arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a Tribunal may be led away from a proper consideration of the issues raised by s.57(3) of the Act of 1978. The emphasis in that section is upon the particular circumstances of the individual employee’s case. It would be most regrettable if Tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or Tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation.
26. At the end of the argument we have not been persuaded that the evidence in this case established any inconsistency of treatment by the respondents of employees in relation to breaches of the socializing rule. It was open to the Industrial Tribunal to take the view that inconsistency had not been established and this part of the appeal is based on an issue of fact rather than one involving a question of law. For that reason we are unable to uphold the appeal on the ground of disparity.”
Finally we would refer to the recent decision in this Court of CAIN v. LEEDS WESTERN HEALTH AUTHORITY [1990] ICR 585 (Sir David Croom-Johnson, T S Batho and R J Lewis) Mr Batho is a member of the present Court. In that case Mr Cain was a hospital laundry worker and was summarily dismissed by the Health Authority on the ground of gross misconduct for fighting with a fellow employee. He complained to an Industrial Tribunal of unfair dismissal. The Tribunal considered the cases of two other employees which had not resulted in dismissal for gross misconduct put forward as comparable, but rejected consideration of those two further cases on the ground that they had occurred seven years earlier at different hospitals. The reason for rejecting those comparables was that the other cases had been dealt with by different personnel on behalf of the Authority and could not necessarily be said to be therefore comparable with the present case in assessing inconsistency. This Court held that an employer must act consistently between all employees and it was no answer that the decision in the other cases had been taken by different servants or agents of the employer. This was held to amount to material misdirection.
As in so many aspects of industrial relations a reasoned and reasonable balance must be sought. This is emphasised in HAJIOANNOU. Before reaching a decision to dismiss an employer should consider truly comparable cases of which he knew or ought reasonably to have known. The information may be forthcoming at the initial stage or on appeal. If the employee or those representing him know of other such incidents it will no doubt be in his best interests that they should be identified or at least drawn to the attention of the employer. If necessary an adjournment can be taken for further investigation. A small concern may not keep any records of dismissal; a large employer may do so as a matter of sound administration. We do not suggest any obligation so to do. Unless the personnel manager has been in post for a substantial period it may be reasonable to make enquiry of others, as did Mr Scott in the present case.
Industrial situations within a unit or on a site may change from time to time as may physical conditions. There may be an increase in dishonesty, fighting or absenteeism. Thus, it may not be reasonable to look back more than a few years.
These may be some but by no means all the factors which may be relevant to the approach of this employer in these circumstances. The question will always be one of fairness.
Whatever the relevant factors, the overriding principles must be that each case must be considered on its own facts and with freedom to consider mitigating aspects. The dangers of a tariff and of untrue comparability are only too obvious. Not every case of leniency should be considered to be a deviation from declared policy.
For the reasons we have given this appeal is dismissed.
Procedure / Misconduct
Mooney v. An Post
[1998] 4 I.R. 288
Barrington J.
“Two passages which appear in the judgments in Gunn v. NCAD [1990] 2 I.R. 168, have caused difficulties to trial judges in that they cast doubt on the relevance to Irish law of the speech of Reid L.J. in Ridge v. Baldwin [1964] A.C. 40 and on the reasoning of Kenny J. in Glover v. B.L.N. Ltd. [1973] I.R. 388.
The first is a passage which appears in the judgment of Walsh J. (at p. 181) reads as follows:-
“There is one other matter I wish to refer to, to clear up what appears to be misapprehension concerning the application of the rules of natural justice or of constitutional justice. The application of these rules does not depend upon whether the person concerned is an office holder as distinct from being an employee of some other kind. I mention this because it is a subject which is referred to in the course of the judgment of the learned judge of the High Court in his reference to Glover v. B.L.N. Ltd. [1973] I.R. 388. The quality of justice does not depend on such distinctions.”
The second is that of McCarthy J. which appears at p. 183 and reads as follows:-
“I share the view of Walsh J. that, in the absence of any particular prescribed procedure, the principles of natural justice or constitutional justice would govern the relationship between the plaintiff and An Bord. These principles are not the monopoly of any particular class.”
The third member of the court, Griffin J. agreed with both of these judgments.
It has been said that, because the Supreme Court held that the plaintiff in that case was in fact an office holder that the passages quoted were in fact obiter. But the purpose of the passages was to emphasise that the difference between employee and office holder was not the determining issue as to whether the principles of natural and constitutional justice applied. Certainly the court appears to have gone out of its way to emphasise this point. It appears to me that what the court was saying is that society is not divided into two classes one of whom – office holders – is entitled to the protection of the principles of natural and constitutional justice and the other of whom – employees – is not. Dismissal from one’s employment for alleged misconduct with possible loss of pension rights and damage to one’s good name, may, in modern society, be disastrous for any citizen. These are circumstances in which any citizen, however humble, may be entitled to the protection of natural and constitutional justice.
The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case. Indeed two of the best known precepts of natural and constitutional justice may not be applicable at all in certain cases. As the learned trial judge has pointed out the principle of nemo judex in sua causa seldom applies in relation to a contract of employment where the employer judges the issue and is an interested party. Likewise it is difficult to apply, to a contract of employment, the principle ofaudi alteram partem which implies the existence of an independent judge who listens first to one side and then to the other.
If the contract or the statute governing a person’s employment contains a procedure whereby the employment may be terminated, it usually will be sufficient for the employer to show that he has complied with this procedure. If the contract or the statute contains a provision whereby an employee is entitled to a hearing before an independent board or arbitrator before he can be dismissed then clearly that independent board or arbitrator must conduct the relevant proceedings with due respect to the principles of natural and constitutional justice. If however the contract (or the statute) provides that the employee may be dismissed for misconduct without specifying any procedure to be followed, the position may be more difficult.
Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.
It is significant that in Gunn v. NCAD [1990] 2 I.R. 168, Walsh J. dealing with the submission that the dismissal of the plaintiff was effected by means of a procedure which violated the plaintiff’s rights to fair procedures stated at p. 179:-
“With regard to the submissions the first thing to be observed is that the statute itself provided no procedures for dismissals, and therefore no question of any departure from any procedure laid down by statute arises. If no other procedure were provided then the matter would have to be judged in the light of the circumstances which attended the dismissal, and it is quite clear that persons cannot be dismissed from what is in effect public office by a procedure which did not inform them of the grounds of their dismissal or afford them an adequate opportunity to rebut, or attempt to rebut, any accusations of misconduct which would justify a dismissal.”
This passage re-echoes a passage from the judgment of Walsh J. in Glover v. B.L.N. Ltd. [1973] I.R. 388 at p. 425, where he said:-
“The plaintiff was neither told of the charges against him nor was he given any opportunity of dealing with them before the board of directors arrived at its decision to dismiss him. In my view this procedure was a breach of the implied term of the contract that the procedure should be fair, as it cannot be disputed, in the light of so much authority on the point, that failure to allow a person to meet the charges against him and to afford him an adequate opportunity of answering them is a violation of an obligation to proceed fairly.”
In the present case the plaintiff was employed by the defendant on the same terms as those on which he had formerly been employed by the Government. Formerly he held office at the will of the Government and could have been dismissed by the Government. If however he were to be dismissed for misconduct he would have been entitled to know what the charges against him were and to have had an opportunity to answer those charges. On the other hand, he would never have been entitled to a hearing by the Government nor could he complain if the Government had acted, as no doubt it would have acted, not only on the evidence in the case but also on the report of one of its inspectors. He would not, normally, have been entitled to see the report of the Government’s investigating officer and neither is he, in the circumstances of the present case, entitled to a hearing before the board of the defendant or to see the report of the investigation officer. On the other hand, it is clear from the findings of the trial judge that he has received the benefits of the fair procedures referred to in the passages quoted above from the judgments of Walsh J.
The matter however does not rest there. The plaintiff claims that he is entitled to the benefit of an oral hearing before an independent arbitrator and to cross-examine, by counsel, those prepared to give evidence against him. This claim calls for a closer examination of the nature of the plaintiff’s employment and of the circumstances surrounding his dismissal.
The plaintiff was a postman which is a position of trust. The defendant received complaints which caused it to have misgivings about the integrity of the postal service and about the conduct of the plaintiff. It appears to me that the defendant was entitled to expect a candid response from the plaintiff when they put these misgivings to him and that it was not sufficient for the plaintiff simply to deny responsibility and to say that he could not “remember back to yesterday week”.
On the 4th April, 1984, the plaintiff made a statement to the gardai in the following form:-
“I have been cautioned that I am not obliged to make a statement or to answer any question and that anything I do say would be taken down in writing and may be given in evidence. I understand that. I have given Detective Sergeant McLoughlin permission to carry out a search of my house and that’s the only statement I want to make.”
It was of course the plaintiff’s right to remain silent while the criminal proceedings were hanging over him. But the plaintiff was acquitted on the 18th December, 1985, and from then until the date of his dismissal on the 4th March, 1987, the plaintiff made no further statement concerning the matters alleged against him. The plaintiff raised no issue of fact which needed to be referred to a civil tribunal. It is important to emphasise that the dismissal proceedings were not criminal proceedings and it was not sufficient for a person in the position of the plaintiff simply to fold his arms and say:-
“I’m not guilty. You prove it.”
To attempt to introduce the procedures of a criminal trial into an essentially civil proceeding serves only to create confusion.
It is necessary also to consider the position of the defendant. It was not in a position to set up an independent tribunal with power to subpoena witnesses even had it wished to do so. At the same time it had received serious complaints from members of the public touching the integrity of the postal services. The defendant could not responsibly ignore these complaints even though the members of the public did not wish to become involved before any court or tribunal. Under these circumstances it appears to me that the defendant was entitled to receive a proper explanation from the plaintiff and that they did not receive it.”
Louie Dunphy -v- HSG Zander Services Ltd.
(UD2361/2010, RP 3169/2010, MN2303/2010), EAT
Background
The employee was an electrician and went out sick in 2009. the Employer dismissed the employee for driving a taxi whilst off sick. The Employee however argues that he was permitted to drive a taxi outside of working hours and as such this was not a case of Gross Misconduct.
The employee received a final written warning in August 2005 for driving a taxi during working hours, and an agreement was presented to the employee on this matter but was never signed by the employee.
“when the nature of an employee working whilst certified unfit to work arises, an onus is placed on the employee to clearly and satisfactorily explain and justify this, and in doing so seek to establish that his action has not undermined or damaged the relationship of trust that is inherent between an employer and employee.”
The Tribunal found Mr Dunphy had failed to discharge this onus and had not satisfactorily addressed the breakdown in the relationship of trust that had taken place as a result of his actions. The Tribunal stated that “this breakdown was of such consequence as to sunder the relationship between the parties.” The employee was guilty of gross misconduct.
Bolger v Showerings (Ireland) Limited
[1990 ELR 184]
The ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that:
“(1) It was the ill-health which was the reason for the dismissal;
(2) That this was the substantial reason.
(3) That the employee received fair notice that the question of his
dismissal for incapacity was being considered; and
(4) That the employee was afforded an opportunity of being heard.”
N v Dunnes Stores (Mullingar) Ltd1988
EAT
The claimant was convicted of assaulting a garda and being drunk in public. She had not informed her employer of the impending court case and had sought a day’s holiday to attend at court.
“We do not think that the offences were sufficiently serious to warrant her dismissal. It was argued .. that the publicity in the local papers in relation to one of its employees would adversely affect the image and therefore the trade of the company. We are not convinced of that argument. While the publicity might not have done the company any good, we cannot see that it did any harm. Accordingly we find that the dismissal was unfair in all the circumstances.”
M v Dunnes Stores (Enniscorthy) Ltd
(UD 571/1988)
EAT
The claimant was dismissed having being convicted of breaking, entering and theft.
“It is of great significance that the claimant was working for a retail store. Trust is an essential ingredient of any employee/employer relationship. In a retail store it is of paramount importance. The claimant’s involvement in the burglary of a neighbouring premises breached that bond of trust. Following the burglary, the employer was entitled to review his attitude to the claimant and, if, in his judgement he could no longer repose any trust in the claimant, he would be entitled to dismiss.”
JS v GG Ireland Limited
UD1195/2012
EAT
“A preliminary investigation was undertaken by SC, branch manager at the date of the incident which led to the claimant’s dismissal. The investigation was confined to how the out of date product had been supplied to the customer and she had no role in making a recommendation in relation to the disciplinary process. However, the investigation concluded that the disciplinary procedure should be invoked on the grounds that the claimant had failed to comply with “in house” policies in relation to monitoring out of date stock.
On the 8 May 2012, the claimant attended a disciplinary hearing conducted by XX, production and purchasing manager. Prior to the hearing date, the claimant was notified by letter dated the 2 May 2012, that following a full investigation, four allegations against him would be included on the agenda as follows;
Failure to comply with standard operating procedures in the store area
Failure to implement appropriate processes to monitor stock rotation
Very serious breach of food safety standards
Failure to effectively supervise the stores with significant potential risk to public safety as well as to create serious damage to customer relations with the airline affected.
The Tribunal is of the view that the appointment of XX to conduct the disciplinary hearing in relation to the four allegations against the claimant was unfair and contrary to the principles of natural justice given that XX had a day to day operational function within the respondent company and ultimate responsibility for the stock and stores department. Furthermore, EK headed an investigation into the current stock control procedures, the results of which formed the basis of the allegations against the claimant and in the absence of any evidence to the contrary, it appears that XX made the decision to dismiss.
Having heard the evidence of all the witnesses, together with the submissions of the parties representatives, the Tribunal is of the view that there was a failure of the standard operations procedures in relation to stock control. The Tribunal finds that it was unfair and unreasonable to conclude that the claimant was solely and exclusively responsible for such failure. Termination of employment on the grounds of gross misconduct was a disproportionate sanction in all the circumstances, particularly but not exclusively taking into account that the claimant was employed by the company for a period of nineteen years with an unblemished record and the claimant received no formal verbal or written warning in the time preceding the incident and other personnel investigated received only final written warnings following the conclusion of the investigative process.
The Tribunal determines that the claimant was unfairly dismissed and awards compensation in the amount of €45,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal further awards the claimant €5,899.84 in lieu of eight weeks minimum notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
M v KLS
UD828/2013
Determination:
The appellant was dismissed from his employment ….having exhausted the disciplinary process. On ……the appellant was spotted on CCTV acting suspiciously. Following an investigation on the day the respondent discovered that two jam tarts were missing from a packet in a box situated in a cage in lane 52. On both occasions when the appellant was observed at a cage in lane 52 he had no reason to be there. The appellant stated that he was not eating a jam tart, he was eating a chocolate bar that he had purchased from the vending machine. The second time he was observed at the cage he said he was watching something on a mobile phone. The CCTV footage does not lend itself to that version of events.
Based on the following facts:
– Stock at lane 52 was tampered with
– The appellant had no authority to be at a cage in lane 52 when he was there.
– The appellant is clearly eating something when moving from the cage.
– His body movements are inconsistent with his version of events.
The Tribunal finds that the appellant’s evidence was not credible and on the balance of probability finds that he did in fact tamper with the stock.
The Tribunal finds that there were no procedural defects which would render the dismissal unfair. The investigation, disciplinary meetings and appeal were thorough, fair and objective.
The Tribunal must assess where or not the sanction imposed was proportionate. The respondent stated that its function is to accept deliveries, process them and dispatch it to a third party stores. The third party is their only client and they are totally reliant on them for their business. There is a high level of trust between the respondent and the third party and that must be maintained at all times. If they tolerated staff tampering with stock the working relationship between them and the third party could be irretrievably damaged. That is why there is a zero tolerance policy. The respondent has placed vending machines on the shop floor to prevent staff tampering and/or eating stock. The Tribunal accepts that the respondent’s zero tolerance policy is reasonable in the circumstances. Any dismissal arising out of a breach of the policy is fair and proportionate.”
P v Dunnes Stores
UD517/2012
Respondent’s Case
The respondent is a large supermarket chain. The claimant worked as a department manager for the respondent having commenced employment in July 2002. The Store Manager (PT) of the respondent supermarket concerned gave evidence.
The supermarket allows various community groups and charities to carry out a ‘bag-pack’ to raise funds. The procedure is that the group write to the respondent requesting a bag-pack, the claimant puts all the request letters in a diary and is then in charge of scheduling the bag-packs limiting them to two a month.
PT, the store manager received a letter of complaint from a local community group. The complaint was that the claimant had opened an account in their name at a cash and carry. The community group’s letterhead was used to validate the association with the group to open the account. The wife of one of the community group leaders works for the respondent and the wife of another community group leader works for the cash and carry; hence the discovery and subsequent complaint.
As a result of this complaint PT held a meeting with the claimant on the 11th of February 2012. The claimant admitted taking the community group’s letter requesting a bag pack and doctoring it for the purposes of opening an account with the cash and carry. By way of explanation the claimant said she was in financial difficulty and was earning extra money from selling the cash and carry goods. The meeting was adjourned.
Later that day the meeting reconvened as a disciplinary meeting. The claimant was offered and declined representation. The claimant again admitted using the letter to open an account but denied selling the goods to respondent staff. The claimant then admitted to selling the goods purchased on a different cash and carry account to staff in the respondent. The claimant was suspended until the 13th of February and warned that the outcome of the disciplinary process could be dismissal.
At the disciplinary meeting on the 13th of February PT outlined the allegations as follows;
‘1.Misrepresestation of the company
2. Forgery
3. Fraud’
The claimant again explained her very difficult personal circumstances that led to her actions. PT had been aware of her difficult circumstances prior to this incident. The meeting was adjourned for PT to consider. PT sought advice from the HR department during the disciplinary process. As per the respondent’s disciplinary procedures, the claimant was dismissed for, ‘conduct, including social conduct unbecoming of an employee of the company or contrary to its best interest or which could bring the company reputation into disrepute.’
PT had “thought long and hard about it over the weekend”, so delivered his decision to dismiss the claimant when the meeting reconvened after a 15 minute break. The claimant was dismissed for gross misconduct; ‘as far as I & the company are concerned the bond of trust has been irrevocably broken’. PT outlined the appeal process to the claimant. The letter of dismissal was issued to the claimant on the same day. The claimant was a department manager and in a position of trust; no other sanction would be appropriate given the serious nature of the offence. PT did take the claimant’s long service, clean disciplinary record and family problems into consideration before making his decision.
Determination
Having carefully considered the evidence adduced, the Tribunal are of the view that as this was the claimant’s first offence, committed in a time of great personal difficulty which the respondent was aware of, the sanction of dismissal was disproportionate.
The Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards the claimant €14,000.00 in compensation.
The claimant is also awarded € 2,630.76 being the equivalent to 4 weeks’ notice under the Minimum Notice and Terms of Employment Acts 1973 to 2005.
Appeal of Employee
UD2196/2011
EAT
“The determination of the Tribunal was as follows:
There was no contest as to the central facts of the case. The appellant was employed on the public transport service provided by the respondent. A member of the public was seen on CCTV annoying other passengers and she went to deal with the problem. The other party reacted to her offensively, including racial abuse, and then spat at her as the appellant was walking away. She then turned around and spat back at him. This brief interchange was recorded on CCTV, and footage was played at the Tribunal hearing.
The appellant at all stages admitted she was at fault during the disciplinary process, and she was dismissed for what was described as “gross misconduct.”
Counsel for the appellant argued that dismissal was too severe in the circumstances, given the provocation involved and her excellent prior record in employment. Counsel also made some procedural points, which the Tribunal did not consider significant.
On behalf of the respondent it was argued that dismissal fell within the range of reasonable actions and relied on case law to this effect.
Section 6 (1) of the act provides that
“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 adjective “substantial” means that the ground relied upon should be a matter of substance rather than form, and should be a matter of gravity. In weighing the gravity of the matter against the penalty of dismissal the Tribunal must have “regard to all the circumstances” as the subsection requires. In other words the Tribunal should decide whether the penalty of dismissal is proportionate to the offence. The doctrine of proportionality is now well established in Irish law since Cox v Ireland (1992 2 I.R. 503) and Heaney v Ireland (1994 3 I.R. 593) and elaborated in other cases since then.
Having viewed the video of the event, the Tribunal is of the view that the conduct of the appellant was such as to bring the company into disrepute and would justify a penalty of some sort, but “having regard to all the circumstances” especially the severe provocation would not amount to “gross” misconduct as the respondent argued. Subsection 6 (1) does not use the adjective “gross” or even the word “misconduct” but only the more neutral word “conduct.” As already stated her conduct did merit some penalty, but the penalty should be proportionate. When we add in the element of provocation, and also have regard to her previous excellent record, we are of the view that dismissal was disproportionate.
The Tribunal therefore finds that the dismissal was unfair under Section 6 of the Act.
The Tribunal also determines that the appellant’s conduct did contribute to her own dismissal under Section 7 of the Act as amended, and this is a matter to which we must have regard in considering redress. The appellant was seeking reinstatement, but this form of redress, which is rare enough in practice, would involve no penalty at all. While we are disposed to some form of re-employment, we are also of the view that re-engagement allows the Tribunal a wide discretion to meet the circumstances of the case.
The Tribunal determines that the appellant be re-engaged back into the position she held with the respondent on 1 December 2010. This re-engagement is to take effect from 1 January 2012. Her remuneration is to recommence from that date. However, the appellant is not permitted to avail of leave entitlements until she actually returns to work. The period from 1 December 2010 to 1 January 2012 is to be treated as continuous service for other purposes other than remuneration and leave entitlements.
Employer v Employer
UD1763/ 2011
The respondent company traded as a fast food store known as Abrakebabra and the claimant was employed as a supervisor in the store from 2006. (F) for the respondent company gave evidence that the claimant was given a number of verbal warnings and in April 2010 received a final written warning for breaches of company rules. In April 2011 (F) viewed CCTV footage showing the claimant consuming food on the premises without any record of the food being purchased. On checking further CCTV footage he discovered two or three similar instances. He called the claimant to a meeting in or around 24 February 2011 and showed the CCTV footage to him. The claimant told him that he had forgot to pay for the food and attempted to pay for it on the following day. (F) told the Tribunal that this was not acceptable and his trust in the claimant had been betrayed. He gave him one month’s notice and dismissed the claimant with effect from 25 March 2011.
He did not write to the claimant confirming his dismissal and did not offer the claimant an opportunity to appeal the dismissal. His word was final. He gave further evidence that he sold the business approximately three months later and existing staff were paid their redundancy and notice entitlements.
The claimant gave evidence that he worked for the respondent since March 2006. He worked 5/6 days per week and his shifts varied from 4 to 10 hours. He told the Tribunal that for the first four years of his employment staff were permitted to have a meal and beverage on the premises free of charge. This position changed in 2010 and staff were required to record their consumption on a record sheet and pay for it thereafter. He was called to meeting by (F) in or around 13 March 2011. He was not informed beforehand of the nature of this meeting. He was dismissed at the meeting for failure to pay for food that he had consumed. He told the Tribunal that he had recorded his food consumption on the record sheet in the usual manner and paid for it on the following day. He did not tell (F) that he had forgot to pay for the food and denied that he was shown CCTV footage of the incident. He confirmed that he had received a previous written warning in 2010 but denied that he had received any verbal warnings. He was dismissed from his employment with effect from 25 March 2011. He is currently unemployed and is seeking alternative employment.
Determination
The Tribunal, after the evidence of both parties finds that there was a direct conflict of evidence between the parties and very little documentary evidence was provided to the Tribunal. Based on the lack of proper procedures adopted by the respondent in terminating the claimant’s empl oyment the Tribunal finds that the claimant was unfairly dismissed. For instance no formal invitation to what amounted to a dismissal meeting was sent to the claimant, no investigation took place and no letter of dismissal issued to the claimant. The Tribunal also notes that no possibility of an appeal was offered to the claimant. In those circumstances the Tribunal finds that the dismissal amounted to an unfair dismissal within the meaning of the Unfair Dismissals Acts and awards compensation in the sum of €9,500.00 under the said Acts.”
Bank of Ireland -v- R
[2015] IEHC 241
Noonan J.
Introduction
1. In these proceedings, the defendant (“Mr. R”) alleges that he was unfairly dismissed by the plaintiff (“the bank”) from his employment and has brought a claim pursuant to the Unfair Dismissals Act 1977 (as amended) (“the Act”). The claim originally came before the Employment Appeals Tribunal (“the EAT”), where it was seven days at hearing over a period of about a year. An appeal was brought from the decision of the EAT to the Circuit Court, which took eight days and in turn, the order of the Circuit Court was appealed to this court when the matter was at hearing for ten days. This is without taking account of an initial investigation, a two stage disciplinary process and two internal appeals.
2. By my reckoning, Mr. R has given oral evidence on some eight occasions over a six year period in relation to this matter. Enormous costs have been incurred that Mr. R at least can ill afford. This must be viewed as oppressive to say the least and calls into question the State’s obligations under Article 6 of the European Convention on Human Rights regarding the right to a fair and expeditious trial. Not for the first time has this court been critical of this unacceptable situation – see the remarks of Charleton J. in JVC Europe Limited v Panisi [2011] IEHC 299. Although as a matter of law an appeal lies from the Circuit Court to the High Court under the Act of 1977, a general reading of the Act appears to suggest an underlying assumption that the Circuit Court should be the final tribunal of appeal. It appears to me that it is well past time that this issue was addressed.
The Employment Documents
24. It was common case that Mr. R was bound by his contract of employment to observance of the bank’s group code of conduct and in particular of a document entitled “Group Information Security Email Usage”, dated the 12th of February, 2008. This document provided (at p. 2):
“Group email systems are provided for in the conduct of group business…
• In email communications, users must not engage in any activity, which is illegal, offensive, disruptive or likely to have negative repercussions for the Group…
The Group reserves the right to monitor and give reasonable grounds for investigation, intercept, access and disclose messages created, received, stored or sent over the group email systems at any time without notice. You agree that the Group may undertake such monitoring and may use such methods and equipment as it considers necessary or appropriate.”
25. The document continues (at p. 5):
“Your usage of the Group email systems should not involve you in any activity that is illegal, offensive or likely to have negative repercussions for the group. Particularly, you must not use, retain, distribute or disseminate any images, text, materials or software that:
• Are or might be considered to be indecent or obscene.
• Are or might be offensive or abusive in that their content is or can be considered to be a personal attack, rude, sexist, racist, pornographic or generally distasteful…
• Adversely impact on the image of the Group.”
26. Finally (at p. 7):
“9: Policy violation.
If you fail to comply with the requirements of this policy, and/or otherwise misuse and/or abuse the Group email systems, you may be liable to disciplinary action up to and including dismissal. The Group will treat any breach of this policy in a serious manner. At the same time, your conduct and/or actions may be illegal and you may be personally liable for the consequences.”
27. The bank also relied on a further document entitled “Disciplinary Procedures” which included the following provision:
“Gross misconduct.
In cases of gross misconduct, an employee may be dismissed without recourse to the earlier steps in the disciplinary procedures. In a situation which may be potentially deemed as gross misconduct, a full investigation will be carried out. An employee may be placed on special paid leave during such an investigation.
Full investigation and careful consideration of the facts will be carried out without undue delay and this may include consultation with any witnesses and the preparation of written statements as appropriate. If the employee’s manager is a witness or the only witness to an alleged case of misconduct, that manager will not conduct the investigation or play a part in the disciplinary decision making process.
If an employee has been found to have committed gross misconduct, there may be mitigating factors which mean that a less serious sanction than dismissal is appropriate. Mitigating factors will be considered bearing in mind the principles of fairness and consistency which underline these disciplinary procedures.
Among the matters which may be described as gross misconduct which may be a cause for dismissal are:-…
4. Breach of Group code of conduct or policies (e.g. group email policy, harassment and bullying policy, etc.).”
28. Although not a contractual document, the bank also placed reliance on a notice by the IBOA, dated the 14th of November, 2006 and addressed to all IBOA members in the Bank of Ireland group. This stated the following:
“Re: use of internet/email and company mobile phones.
Members should be aware that there has been a significant increase in the number of staff being disciplined by the bank for breaches of its email/mobile phone policy. The disciplinary sanctions imposed on staff range from written warnings up to dismissal depending on the severity of the incident.
Members should be aware that the company email and mobile phones are for work related use and should not be used to send material which is not work related.
IBOA are instructing members to familiarise themselves with the bank’s internet/email policy and to ensure that their use of the bank’scomputers/mobile phones comply with this policy.”
38. 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.
39. I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4):
“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:
‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’
It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”
The Decision to Suspend Mr. R
40. The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 IR 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. In Mr. R’s case, his evidence was that rumours and reports circulated about him ranging from possibly being involved in fraud to participation in a tiger kidnapping.
41. Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process. Indeed, this is explicitly recognised by the bank’s own disciplinary procedures in force at the relevant time. The procedures provide, under the heading “Special Paid Leave”, as follows:
“An employee may be placed on special paid leave in order to facilitate the proper conduct of the disciplinary procedures.”
42. The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters.
43. In the present case, the circumstances surrounding the decision to suspend Mr. R are far from clear. As previously noted, three staff members including Mr. R were suspended and two were not, where all five were being investigated for breach of the bank’s email policy.
49. Like Mr. Mahon, I can perceive no logic in the course adopted by Mr. Mk. No evidence has been adduced by the bank as to why it was necessary to suspend Mr. R, less still justify the manner in which it was done. After an exemplary career in the bank, Mr. R was summoned at a moment’s notice by the manager to be told he was being suspended. Mr. Donnelly gave him virtually no information as to the reason other than saying he was acting on the instructions of Head Office and it was something to do with emails and without being afforded even the most basic opportunity to offer an explanation or defend himself, he was marched out the door never to return. Indeed, even if Mr. R had a valid explanation, there was little point in him proffering it to Mr. Donnelly, who had been presented with a fait accompli by Head Office. I cannot accept the proposition advanced by counsel for the bank that Mr. R had no entitlement to natural justice or fair procedures in any shape or form at this stage of the proceedings. Whilst of course it must be correct to say that the full panoply of fair procedures may not have been engaged at that stage, I cannot accept that basic fairness did not require at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response.
50. In the light of the foregoing, I cannot conceive how Mr. Mk could have independently arrived at the decision to suspend Mr. R and two others whilst not suspending a further two staff members accused of the same misconduct. It seems to me that the conclusion is irresistible that either somebody else made the decision and directed Mr. Mk to implement it or alternatively it was suggested to him as the appropriate thing to do and he simply accepted that without further ado. Furthermore, the only possible explanation for selecting three out of the five employees concerned for suspension was that the view was taken that the contents of their mailboxes represented more serious misconduct than that of the two who were not suspended. If that is so, it must follow as a logical consequence that the suspensions were nothing to do with the pending investigation and disciplinary process but rather were an expression by the bank of its view of the seriousness of the matter and its resolve to punish those responsible accordingly.
51. That conclusion is supported by the evidence of Mr. Mahon and Mr. Kelly about their first meeting on the 27th February, 2009 about Mr. R’s case, when Mr. Kelly said that the bank was taking a serious view of the matter which was a rising trend. That comment, when seen against the background of the events of the previous ten days or so, suggests to me that the bank had already determined to make an example of Mr. R.
Discussion
52. The bank’s disciplinary procedures quoted above refer to the concept of gross misconduct which may include breach of the group email policy. Of course, every breach could not constitute gross misconduct, or perhaps misconduct at all, and it is a question of degree in each case. The evidence suggests that the bank took the view from the outset that gross misconduct was involved. Mr. R was quite unaware of this and his evidence was that whilst the matters complained of might amount to misconduct, they were certainly not gross misconduct. Mr. Mk took a different view, concluding that Mr. R’s breach of the email policy did constitute gross misconduct of a degree which warranted dismissal. However, the first time that gross misconduct was mentioned to Mr. R was in Mr. Mk’s letter of the 5th of May, 2009, advising him that he would be dismissed unless he could persuade Mr. Mk otherwise at the stage two meeting. Whether the behaviour complained of was gross misconduct or simply misconduct is clearly a qualitative judgment in much the same way as is an assessment of the content of the emails. Whilst classifying the conduct as falling into a particular category may be viewed by the bank as relevant to the sanction it may impose within the framework of its own procedures, it is, in my view, of limited assistance in determining whether there were substantial grounds justifying the dismissal. In coming to a view on that issue, it is necessary to examine the factual background against which the conduct in issue arose.
53. Mr. R’s evidence was that the practice of circulating these inappropriate emails was widespread. The evidence put before me certainly demonstrated significant evidence of the circulation of this type of material not only within the bank but throughout a large number of public companies and state and semi-state bodies. No evidence was led by the bank to contradict Mr. R’s evidence on this point, which I accept. Mr. R struck me as an honest and truthful witness not given to exaggeration or hyperbole. I also believe that the bank was well aware of the practice. The bank itself relied on the IBOA circular of November, 2006 addressed to breaches of the email policy. I also accept Mr. R’s evidence that he was not aware of this circular although as I have said, the bank certainly was. Further Mr. Kelly’s comment to Mr. Mahon that this was a rising trend indicates a degree of prior knowledge.
54. Despite this knowledge, there was no evidence of any significant attempt by the bank to address this issue. If it was a rising trend as Mr. Kelly said, it seems to me that steps could have been taken whether by way of circular notices, team briefings or whatever method to ensure that staff were left in no doubt as to the bank’s attitude and the likely sanctions that might be imposed for a breach of the policy. In the absence of any such steps by the bank,its employees, whilst aware in general terms of the policy, might well have concluded that it was more honoured in the breach than in the observance. Mr. Mahon’s uncontroverted evidence was that up to the time that Mr. R was suspended, nobody had ever been either suspended or dismissed for breach of the email policy. Some dismissals did occur in the bank’s subsidiary, the ICS and although events were unfolding at that time, the dismissals did not actually occur until post-February, 2009.
55. It seems to me that if a policy of zero tolerance was going to be adopted by the bank to breach of its email policy, its employees were entitled to some notice of this policy shift. This would not have been difficult to achieve. From Mr. R’s perspective, it clearly never occurred to him that in sending on chain emails, he was potentially exposing himself to dismissal. I have no doubt that had he known, he is very unlikely to have engaged in this conduct. He certainly had little reason to anticipate what occurred. His evidence, again undisputed, was that there was a pornographic calendar hanging in the men’s bathroom at the Blanchardstown branch for years without any attempt by management to remove it. This smacks somewhat of a double standard within the bank.
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.
57. There is no doubting the inappropriateness of the emails and even Mr. R appears to accept that sending them constituted misconduct deserving of some sanction. It is ultimately a matter of opinion as to whether some or all of the images were pornographic, obscene and so forth but certainly the bankwere entitled to come to a view on this. Whether it is a view shared by the court or anyone else is not material as the authorities suggest. The same considerations apply to whether they ought to be regarded as offensive and certainly to some, perhaps most, people that would undoubtedly be the case. However, the fact remains that there is no evidence that anybody was actually offended by any of these emails. Nobody complained. The bank did not call any recipient to give his or her opinion on them. The bank say that they had the potential to reflect unfavourably on it and perhaps even for it to be sued. That may well be so but none of this actually happened over a fairly long period, perhaps because those in receipt of the emails either wanted to receive them or acquiesced in receiving them. Indeed, as the evidence makes clear, it was by mere chance that Mr. R’s behaviour was even detected. In short, there is no evidence that the bank suffered any loss, damage or detriment whatsoever as a result of the conduct complained of.
58. It should also be borne in mind that none of the emails in question originated with Mr. R, with the sole exception of the one he accidentally sent to his bank email and forwarded only to himself. The number of emails was relatively small – 29 over a two year period out of a total outbox of 1139. I think it is also of some significance that there is at least some evidence that Mr. R was not treated on a like footing to others in the bank similarly implicated. Thus, with regard to the “Anything to Declare” email, regarded as the most serious by Mr. Lonergan, despite clear evidence that this originated in Head Office and was sent on by an official subsequently promoted, no steps appear to have been taken by the bank to even investigate the other employees concerned. Furthermore, it seems that the bank went to considerable lengths to conceal the provenance of this email.
59. As against all this, the effect of the dismissal on Mr. R must be considered. At the time of his dismissal, the country had just been plunged into the worst economic catastrophe in its history, brought about in no small measure it must be said, by the activities of our banks. Mr. R’s prospects of re-employment were extremely poor, as turned out to be the case, and as the bank well knew before it dismissed him. He had in the recent past purchased a house close to his parents in Blanchardstown with the benefit of a mortgage from the bank which he now found himself unable to repay. It is clear from his evidence that these events had a catastrophic effect on him and as he says, destroyed his life and ruined his career. Indeed, this was one of the submissions made by Mr. Mahon to Mr. Mk but unfortunately it fell on deaf ears.
60. Having regard to all of the foregoing, I am satisfied that the conduct of the bank in relation to Mr. R’s dismissal and the events leading up to it could not by any objective standard be described as reasonable. The evidence has driven me to the conclusion that at a very early juncture, probably on the 17th of February, 2009, a decision was made within the hierarchy of the bank to make an example of Mr. R in order to deter others from similar behaviour in the future. That decision may or may not have been made by GIR, but as a minimum was strongly influenced by it. Whilst lip service was paid to observance of procedures, it is clear that there was only ever going to be one outcome. The bank’s response in this case was entirely disproportionate and could not in my view be regarded as falling within the range of reasonable responses of a reasonable employer to the conduct in issue.
61. Accordingly, I am satisfied that the bank has failed to discharge the onus of establishing that there were substantial grounds justifying the dismissal in this case.
Remedy
62. Counsel for Mr. R, Mr. Banim SC, submits that the only remedy which will do justice in this case is re-instatement, as ordered by the EAT. For the bank, Mr. Connaughton SC submits that such a remedy would be wholly inappropriate because Mr. R, by his conduct, must be held to have substantially contributed to his dismissal. That contribution must be considered in determining the remedy and in that regard, the bank rely on the judgment of Carroll J. in Memorex World Trade Corporation v. Employment Appeals Tribunal [1990] 2 I.R. 184. That was a case in which the employer sought to judicially review a decision of the EAT on the grounds that it had failed to hear all the evidence and had decided the case effectively at the end of the employer’s case. The court accepted that the hearing was unsatisfactory for these reasons but declined an order of certiorari on the basis that the EAT had erred within jurisdiction and in any event, the appeal procedure that was available was an adequate remedy. It seems therefore that the court considered that its discretion should not be exercised in favour of granting judicial review. In the course of her judgment, Carroll J., in commenting upon the conduct of the case before the EAT, said (at p. 188):
“The Tribunal should hear all evidence available relating to the dismissal not only to determine whether there were substantial grounds but also because the extent to which an employee contributes to his dismissal is a matter which has to be taken into account in determining the appropriate remedy.”
63. It is clear that these remarks by Carroll J. were obiter as they were not directed to the substantive issue in the case which she had already at that point in her judgment decided. Further, there is nothing from the Law Report to suggest that this point was argued before her in any depth or indeed at all as it did not form the basis for the arguments being advanced by either side.
64. In my view therefore, the court did not intend to lay down any rule of general application in making these remarks and in any event, for the reasons already explained, I do not believe I am bound by them.
65. It will be seen from the express wording of s. 7 that the concept of the conduct of the employee contributing to the dismissal is confined to situations where the court considers that compensation is the appropriate remedy. Thus, in McCabe v. Lisney (Unreported, High Court, 16th March, 1981) and Carney v. Balkan Tours [1997] 1 I.R. 153, the court was in each case concerned with a reduction in the award of compensation having regard to the extent of the employee’s contribution to the dismissal. It would of course be unreal to suggest that the court could not have regard to the conduct of the employee in considering in a general sense whether the remedies of re-instatement or re-engagement were appropriate. However, in my view, it is equally true that the mere fact that the employee may have been guilty of some degree of misconduct, even if that were felt to have contributed to the dismissal, cannot of itself preclude the possibility of those remedies being invoked. At the end of the day, the court has to grant the remedy which will do justice between the parties.
66. I have already concluded that the bank’s conduct in this case was unreasonable and disproportionate. I would add to that by saying that the manner in which it predetermined and manipulated the entire process from the outset reflects little credit on it and visited a very grave injustice on Mr. R.
67. In my view, an award of compensation would fall far short of providing adequate redress in this case and the only appropriate remedy is re-instatement.
Employer v Employee
UD 2202/10
Respondent’s Case:
The respondent is a property management company and employed the claimant as a security officer from 6th August 2004 to 6th June 2010. The claimant worked in Shopping Centre D. GOC was manager of the Shopping Centre during the claimant’s tenure and carried out an investigation into alleged misappropriation of funds by the claimant. GOC was satisfied that the findings of his investigation merited referral onwards for possible disciplinary action and accordingly referred the case to a Director of the respondent.
Claimant’s Case:
The claimant commenced employment on 6th August 2004 and worked as a security officer in Shopping Centre D until his employment was terminated by the respondent on 6th June 2010.
The claimant categorically denied taking money from pay stations located in the centre during his tenure.
Determination:
Having considered the evidence adduced by the respondent on the first day of the hearing and the respondent failing to appear at the resumed hearing, as the company had gone into liquidation, the Tribunal is not satisfied that the claimant misappropriated money from the respondent. The Tribunal finds that the respondent did not discharge the burden of proving to the Tribunal that the reason the claimant was dismissed was fair.
The Tribunal further finds having considered the uncontested evidence of the claimant that he was unfairly dismissed. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the Tribunal awards the claimant an amount of €46,800.00. The Tribunal also awards the claimant €1,800.00 being the equivalent of four weeks pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.”
A Drive v Waste Management Comapany
DHL EXPRESS (IRELAND) LTD DHL v MC
UDD176
FULL RECOMMENDATION
UD/16/40
DETERMINATIONNO.UDD176
ADJ-00000027 CA-00000051-001
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015
KEELINGS LOGISTICS SOLUTIONS v SM
DIVISION :
Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Ms O’Donnell
SUBJECT:
1. Appeal of Adjudication Officer Decision No: ADJ-00000027.
BACKGROUND:
2. The Worker appealed the Recommendation of the Adjudication Officerto the Labour Court on 19th May 2016 in accordance with Section 9(1) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 18th January 2017. The following is the Determination of the Court:
DETERMINATION:
The Appeal
This is an appeal by Sima Maliauskas (the Appellant) against the decision of an Adjudication Officer in his claim that he had been unfairly dismissed by his former employer Keelings Logistic Solutions (the Respondent).
In a decision dated 8thApril 2016 the Adjudication Officer found that the Respondent’s decision to dismiss the Appellant was fair and the Appellant’s complaint was not upheld.
The Appellant was employed from 23rdMay 2005 until his dismissal on 6thAugust 2015. The fact of dismissal is not in dispute.
Summary of the Position of the Respondent
The Respondent contended that the dismissal of the Appellant was fair and reasonable and occurred by reason of unacceptable conduct by the Appellant.
The Respondent operates an Absence Control Programme (ACP) which is collectively agreed with the Trade Union representing staff in the employment including the Appellant and has been in place since 2007. The agreed objective of that programme is to maintain absence levels at or below 3%. Absence levels in 2016 were above 8.42%.
The ACP is a staged process whereby a person’s absence pattern can lead to progressive phases of warnings. A final written warning may be issued only at phase 4 of the ACP and at phase 5 the person may be considered for ‘capability’ dismissal. Where a person reaches a particular stage in the process a period free from absence leads to a ‘step back’ in the procedure.
The Respondent contends that at the end of 2013 it sought to engage with the Trade Union in order to review the ACP but subsequent engagement did not produce an agreement to alter the ACP process.
The HR manager of the Respondent stated in evidence that it commenced a process of review of those employees with the highest levels of absence in April 2015. The Appellant was one such employee.
The Respondent stated that the Appellant was absent on 66 occasions between 2005 and 2015 and that 31 different reasons were submitted by the Appellant for such absences. In addition the Respondent submitted that the Appellant was absent on seven occasions due to compassionate leave afforded on the death of a close family member. The Respondent asserted to the Court that the Appellant had significant accident related absences in 2008 – 2009, 2009 – 2010 and 2014 – 2015 and stated to the Court that such absences, while occurring in years when the Appellant did not exhaust his sick pay entitlement, were not taken into account by the Respondent in coming to its conclusions as regards the absence patterns and levels of the Appellant.
The Respondent submitted to the Court that on eleven occasions the Appellant was absent on sick leave directly before or after annual leave. The Respondent also submitted that the Appellant was absent on sick leave on or directly after his birthday on four occasions in the ten years of his employment.
The Respondent submitted to the Court details of the absence pattern of the Appellant which the Respondent contended demonstrated repeated temporary transformations in the Appellant’s absence pattern when he entered the ‘warning’ phase of the ACP and the subsequent resumption of absences as soon as that phase of the ACP had lapsed.
The Respondent outlined in evidence details of the process engaged in following the initial analysis in 2015 of the Appellant’s patterns of absence during his employment. That process involved an invitation to the Appellant dated 21stApril 2015, following his return to work after an absence on 20thApril 2015, to attend a meeting on 23rdApril 2015. The Appellant on that date raised a query as regards an alleged grievance he had raised in October 2014 alleging discrimination by a named colleague and stating that he believed he was being discriminated against by the Respondent’s HR Department. The Respondent’s HR Department responded on 23rdApril 2015 to advise that when the Appellant raised a matter in October 2014 he had been written to seeking clarification but that the Appellant had not responded.
The Respondent stated that on 22ndApril 2015 the Appellant left the workplace without permission saying that he was stressed. This was followed by medical certificates. The Appellant was, on 28thApril 2015, referred to the Respondent’s occupational health specialist. The Appellant attended that specialist on 11thMay 2015. That specialist confirmed to the Respondent on 13thMay 2015 that the Appellant was fit to attend workplace meetings and confirming her advice to the Appellant to attend the workplace to resolve his alleged workplace issues.
The HR Manager of the Respondent stated in evidence that, in line with the normal practice of the Respondent, the Appellant was then invited to meet with the HR manager of the Respondent. That meeting took place on 21stMay 2015. The HR Manager stated in evidence that at that meeting the Appellant stated that the Respondent’s doctor was biased and that the Respondent was ignoring his grievances. The HR Manager subsequently wrote to the Appellant on 21stMay 2015 inviting him to raise any grievances which he felt he had and also stating that he would be sent to another doctor. The Appellant attended another Doctor on 28thMay 2015 who advised that the Appellant should engage with the Respondent to resolve any issues he believed were outstanding.
The Appellant attended a formal investigation meeting on 11thJune 2015 with a manager of the Respondent. The Appellant was represented by a Trade Union representative.
The manager carrying out the investigation issued an investigation report recommending that the Appellant be put forward for a disciplinary meeting. The investigator identified the matter under consideration as ‘Alleged misconduct – manipulation of company policy and misuse of company sick pay’.
The Appellant attended a disciplinary meeting on 24thJune with a manager of the Respondent. He was accompanied by a Trade union Representative. The Appellant was subsequently absent from work and was asked to attend the Respondent’s doctor again. The respondent’s doctor found that the Appellant was fit to resume work on 5thAugust but he did not attend for work that day. On 6thAugust the Respondent wrote to the Appellant advising him that the disciplinary meeting had resulted in a finding that he should be dismissed. That letter also advised the Appellant of the means to make an appeal.
An appeal hearing was held on 20thAugust 2015 where the Appellant was accompanied by a Trade Union representative. The Appellant was advised on 28thAugust 2015 that the decision to dismiss was upheld.
The Respondent contended to the Court that the decision to dismiss was a proportionate response to persistent manipulation of the Company’s sick pay and ACP policies and abuse by the Appellant of the compassionate leave policy. The Respondent further contended that the procedure adopted by the Respondent was in line with its published and agreed disciplinary policy and that the procedure was operated fairly.
Summary of the position of the Appellant.
The Appellant contested the assertion by the Respondent that he had availed of seven instances of compassionate leave and stated in evidence that he had done so on five occasions only.
The Appellant did not dispute the detail of other absence patterns and instances put before the Court by the Respondent and acknowledged the contention that he had been absent on 66 occasions totalling 316 days.
The Appellant contended that the Respondent operated an Absence Control Policy (ACP) which provided for a phased process wherein absences were considered by the Respondent and acted upon if necessary. The Appellant contended that the Respondent could not undertake a disciplinary process outside the ACP but that that it had done so in this case. The Appellant contended that the procedure followed by the Respondent was consequently unfair.
The Appellant contended that he had not been made aware that his absence pattern could give rise to a risk of dismissal. The Appellant contended that his absences were dealt with throughout his employment under the ACP and that he had never been accused of dishonest behaviour.
The Appellant asserted to the Court that he had no control over when he is ill but that he had always followed procedures when he was ill.
The Appellant contended that a grievance he had raised in 2014 alleging discrimination had not been followed up by the Respondent and that Respondent had failed in its duty of care to him.
Discussion and conclusions.
The Court has considered in detail the written and oral submissions of the parties.
The extensive absence pattern of the Appellant is not in dispute and neither is it disputed that his absence pattern regularly resulted in his being advanced through the phases of the ACP policy. Advancement through the policy brought to the Appellant’s attention the fact that his absence levels were a cause of concern to the Respondent.
The Court notes that the Respondent decided in 2015 to review the absence patterns of those employees with the highest absence levels in the organisation. The Court further notes that this review led to a decision to investigate the absence patterns of the Appellant. That investigation was followed by a disciplinary procedure. All of the investigative and disciplinary procedures employed by the Respondent were those which are the subject of collective agreement in the employment and circulated and made known to all employees including the Appellant. The Court is satisfied that the procedures were operated in a fair manner having due regard to the Appellant’s entitlement to representation and to natural justice.
The Court cannot accept that the Respondent was not entitled to review the absence patterns of those of its employees with high levels of absence. Neither can the Court conclude that where issues of concern were identified in that review the Respondent was not entitled to investigate the matter. The Court accepts that the Respondent, notwithstanding the existence of the ACP, is entitled to initiate its disciplinary procedure whenever an investigation concludes that circumstances are such as to warrant the operation of such a procedure.
The Court can but observe, noting the absence history of the Appellant, that the ACP was clearly incapable of addressing a situation where the Respondent was faced with an extraordinary level of absence which, if repeated widely in the enterprise, would have been wholly unsustainable. The Court however accepts that it was not the level of absence which gave rise to disciplinary procedures in this case but rather it was alleged misconduct through manipulation of company policy and misuse of company sick pay which was at issue following an investigation. The absence levels of the Appellant and a contention of manipulation and misuse of policies by him are distinct matters.
The Court finds that the Respondent was entitled to address the matters of alleged manipulation of company policy and misuse of company sick pay through the clearly enunciated and collectively agreed disciplinary procedure which afforded full and adequate opportunity for the Appellant to state his case and to defend himself comprehensively. The Court further finds that the procedures were employed fairly and correctly in this case.
The disciplinary process concluded that the Appellant had abused the systems in place in the company and that the trust and confidence necessary to sustain the employment relationship had been eroded. The Respondent, through the disciplinary process, concluded that the Appellant was guilty of gross misconduct in that he had deliberately manipulated company policy and misused the company sick pay scheme. The Respondent determined that dismissal was the appropriate and proportionate response to the findings of the disciplinary process
The Court has found that the investigative and disciplinary processes employed by the Respondent were fair and were conducted appropriately. The role of the Court therefore is to determine whether the decision to dismiss in the circumstances was within the range of responses of a reasonable employer to the findings of the disciplinary process. The Court concludes that the decision to dismiss was within that range in this case.
The Court finds that the Appellant was not unfairly dismissed.
Determination
The Court determines that the Appellant was not unfairly dismissed and the Appeal fails.
The decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Foley
CO’R______________________
7th February, 2016Chairman
UD826/2013