The Complainant commenced employment with the Respondent on the 12th of December 2016 and was initially employed in the role of Account Executive prior to his promotion to the role of Enterprise Account Executive in April 2019. He was dismissed on the grounds of serious misconduct on the 17th of September 2019, following allegations of bullying having been made against him.  

The Complainant stated that the dismissal was unfair because there was not a proper division between the investigation process and the disciplinary process and further submitted that the disciplinary hearing was unfair because it failed to take into account the personal relationship between the Complainant and Mr Q, one of the two parties who made a complaint against him. The Complainant also stated that the precise grounds for his dismissal were unclear, and he had not received any warnings prior to the termination of his employment.   

The conduct in question related to alleged bullying of his manager and another colleague, in clear contravention of the Respondent’s procedures, set out in the Employee Handbook. 

The Respondent stated that they were “fully committed to providing a work environment free from harassment and bullying of any kind and that any complaint of bullying is treated extremely seriously and, after investigation and when substantiated, can be regarded as grounds for disciplinary action up to and including dismissal with or without notice”  

The Respondent argued that the Complainant’s interactions and communications with his colleagues were frequently problematic and required intervention by management on various occasions. The Respondent stated that it had been made extremely clear to the Complainant that these types of behaviours and communications with colleagues were completely unacceptable, were not in keeping with the Respondent’s culture and values and would not be tolerated if they continued. Accordingly, the Respondent believed that the Complainant was clearly on notice of the seriousness of this wrongdoing and of the fact that it would not be tolerated going forward.  

The Respondent stated that they sought to deal with the issues at that stage on an informal basis, as appropriate for a first offence and with a view to giving the Complainant a chance to improve his tone, reactions, and behaviours. The Respondent added that the Complainant was afforded every reasonable opportunity on an informal basis on several occasions to re-evaluate his aggressive and inappropriate behaviours. Notwithstanding this, it was asserted that the Complainant’s inappropriate and unacceptable language and behaviours only worsened over time. This situation then culminated in two formal complaints being submitted against the Complainant on the 23rdof May 2019 and the 3rd of June 2019 respectively which, in turn, led to an investigation and subsequently a disciplinary process.  

Thereafter, the Respondent decided to place the Complainant on suspension on the 6th of June 2019 with pay pending further investigation in relation to the issues that had arisen. The Respondent stated that the precautionary suspension was entirely lawful, necessary and appropriate in all the circumstances, given the extremely concerning pattern of behaviour under investigation.  The disciplinary process culminated in the dismissal of the Complainant.   

On review of the evidence, the Adjudication Officer found that that there was no “warning” given to the Complainant in accordance with the Respondent’s handling of the matter and the communication to the Complainant following the informal handling of the matter in May 2019 did not contain the word ‘warning’.  While the Respondent highlighted that the words “equally critical to your future”,  meant that the Complainant was clearly on notice of the seriousness of this wrongdoing and of the fact that it would not be tolerated going forward, the Adjudication Officer opined that the Respondent should have made it clear to the Complainant that his role would be in jeopardy if his conduct did not improve.  

In addition, the Adjudication Officer commented that it was worth highlighting that there was no training given to the Complainant on the Respondent’s bullying and harassment policy at any stage over the course of his employment after it was given to him as part of the employee handbook when he started.  

The Adjudication Officer was satisfied that, while the Complainant did engage in some inappropriate behaviours in his interactions with his two colleagues who made a complaint about him, these fell a long way short of warranting his dismissal in the circumstances. Accordingly, the Adjudication Officer found that the Complainant’s dismissal was substantively unfair as well as wholly disproportionate and that no reasonable employer would have made a decision to dismiss him in the circumstances.  

In calculating the award, the Adjudication Officer was of the view that it would have been extremely difficult for the Complainant to have found alternative employment and was not surprised that it took him 22 months to find a new role, given the nature of his dismissal. The Adjudication Officer recognised that the worker earned a very substantial remuneration package, that the firm operates in a niche sector in a city in a very small country where both employers and recruitment agencies are easily known to one another. Therefore, there would have been an obvious reluctance of prospective employers to offer the complainant any position, let alone a well-paid one, when being made aware of the reasons behind the termination of his employment. 

Accordingly, the Adjudication Officer awarded the sum of €329,199, namely 75% of the overall financial loss, find it just and equitable in respect of the unfair dismissal. This sum took into account the contributing factor that the Complainant himself contributed to his dismissal.  

Guidance for Employers  

Communication between Employers and Employees is of fundamental importance when a disciplinary process or investigative procedure is ongoing. The function of the Adjudication Officer is to assess what a reasonable employer would do in the circumstances.  In this particular case, the Adjudication Officer emphasised the fact that the “warning” or risk that the Complainant’s position could potentially be in jeopardy was not properly highlighted.  This case also demonstrates the importance of creating an investigative procedure that will clearly be independent and wholly separate to that of a disciplinary one. 
https://www.workplacerelations.ie/en/cases/2022/april/adj-00027573.html