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Latest in Employment Law>Case Law>Oglaigh Naisiunta Na hEireann Teoranta v McCormack [2011]
Oglaigh Naisiunta Na hEireann Teoranta v McCormack [2011]
Published on: 22/07/2011
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Background

The complainant in this case worked as a house manager in an accommodation centre for ex-service personnel of the Irish Army from March 2004 to December 2008. In 2006, he was also appointed as administrator of a project called the ‘Forgotten Soldiers of Peace’ which was launched in April 2008. Following the launch, the complainant issued a press release without seeking the approval of his CEO which led to a disciplinary meeting on 16th May and the issuing of a written warning on 30th May. 

The complainant’s solicitor wrote to the respondent on 7th August alleging that he had been bullied by the CEO at the disciplinary meeting on 16th May and the stress involved had compelled him to go on sick leave on 23rd July (during which he was not paid). Following a subsequent meeting of the CEO, the Chairman and the Secretary of the respondent company and its solicitor, a letter was sent by the solicitor on August 29th which appeared to reject the complainant’s version of events and accept the CEO’s. It also transpired that the CEO had taken it upon himself to write to a person who had witnessed the alleged incident of bullying on May 16th, though no date is provided in the written decision for this piece of correspondence. Further and more detailed allegations of bullying against both the CEO and a director of the respondent company were made by the complainant’s solicitor in a further letter of October 13th. 

On 6th November an article written by the complainant (who was still on sick leave) was published in a regional newspaper in which he again purported to act as a spokesperson for the respondent and which appeared to campaign against the closure of army barracks. The following day, 7th November, the complainant called to the accommodation centre to collect some personal belongings from his office to find that the lock had been changed. It transpired that a director of the respondent company had taken this action unilaterally and this was compounded by the unrequested return of these items to his home. 

On December 2nd, the respondent’s solicitors wrote to the complainant’s solicitors proposing the names of three independent investigators to investigate the bullying complaint. However, this letter also simultaneously accused the complainant of having breached his terms and conditions of employment by the publication of a newspaper article in which he purported to be the respondent’s spokesperson. The complainant refused the offer of an independent investigator at this juncture. On 4th December, the CEO wrote to the complainant asking him to ‘give cause as to why he should not be dismissed’ and finally, on 19th December, he was dismissed for his refusal to adhere to his terms of employment and to cooperate in the investigation of his allegations of bullying.

The Court’s conclusions:  The Court began by finding that the letter written by the complainant’s solicitor on 7th August alleging bullying amounted to a health and safety complaint for the purposes of the Act, although it stressed that it was making no finding as to whether bullying had in fact taken place. On a procedural note, it then decided that it could only consider alleged incidents of penalisation resulting from that complaint from that date - 7th August - to the date that a complaint was made to a RC under the 2005 Act -19th December. It added that as the complaint of penalisation did not include the complainant’s dismissal, the Court could not include it (it is of course quite conceivable that a separate complaint of dismissal has been made by the complainant under another Act to another forum). Thus, it reasoned that it could consider the following matters:

* Failure to conduct an objective enquiry into the allegation of bullying
* Loss of pay whilst out sick
* Changing the lock on the door and the unrequested return of personal belongings
* Failure to seek a medical report on the complainant’s condition
* The threat of dismissal in the letter of 4th December 2008

Having identified that a complaint had been made by the complainant on a health and safety issue, the Court had to then decide whether a detriment had been imposed on him as a result of his complaint. It concluded that the continuing involvement of the CEO against whom an allegation of bullying had been made was totally inappropriate and compromised the respondent’s ability to deal with the complaint in an objective matter. Had an immediate and objective investigation taken place and the medical evidence been sought, the complainant’s loss of income could have been minimised. Although the changing of the lock on the complainant’s office door and the return of his belongings was carried out without the CEO’s knowledge, the respondent did not address or explain it, even when it was twice raised by the complainant’s solicitor. As such, it had to be regarded as a retaliatory act by the respondent as a reaction to the bullying complaint. 

The Court took the view that the complainant’s refusal of the respondent’s proposal in the letter of 2nd December to appoint an independent investigator was misjudged as it considered it to be the most appropriate way to progress the matter. However, it noted that the same letter asked for his views regarding the newspaper article suggesting that it was a breach of his contract and was followed very quickly by a further letter from the CEO asking ‘to give cause as to why you should not be dismissed’. The Court concluded that the respondent did not give the complainant an opportunity to have his views heard and acted with undue haste. The tone of this letter with its threat of dismissal suggested that the matter had already been decided and on the balance of probabilities was further evidence of further penalisation connected to the allegation of bullying.

The decision of the Rights Commissioner was set aside and the complainant was awarded €7,500 in compensation.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 22/07/2011
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