Paul Dudgeon v An Post ADJ-00038989

This is a very noteworthy case dealing with a complaint made under Section 8 of the Unfair Dismissals Act 1977.  It serves as a good reminder of the approach employers should take when dealing with disciplinary actions of the conduct of an employee outside of the workplace.

Brief Summary of Facts

The Complainant was employed as an auxiliary postal sorter. The Complainant had a dispute with his former partner in January 2020. Arising from same, his former partner made a complaint of theft and assault to the Gardai.  A criminal case commenced before the District Court, on 7 October 2020.  On 16 December 2020, the Complainant was convicted in the District Court of theft and assault offences. He appealed to the Circuit Court, and the case was dealt with by the Circuit Court over a period 15 April 2021 to July 2021.   Ultimately, the charge in respect of assault was dealt with under the Probation Act following the payment of a total of €6,000 by the Complainant and the appeal in respect of theft was allowed.

The Respondent was made aware of several social media posts which claimed to refer to the Complainant. Following this, an investigation commenced.

Between 12 October 2020 and 20 November 2020, two investigation meetings took place between the Complainant and the Investigation Branch of the Respondent.  On the 23 November 2020 the Complainant was suspended from employment on pay.  Following a disciplinary process, which involved an initial decision and appeal, the Complainant was dismissed from his employment, effective from 11 February 2022. The Respondent's case was that the dismissal was not simply about 'out of work conduct'.  It submitted it concerned the manner of the Complainant's engagement with the Respondent regarding his 'out of work conduct'.

Statutory Position

As dismissal was not in dispute, the burden of proof was on the Respondent to show that the dismissal was not unfair.  Section 6(6) Unfair Dismissal Act 1977.

Section 6(1) of the Unfair Dismissal Act 1977 provides that: -

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4) of the Act in relevant part provides:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(b) the conduct of the employee,

Section 6(7) of the Act in relevant part provides that: -

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

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

In its submission and during the hearing, the Respondent stressed that Complainant’s dismissal did not relate to his criminal case before the Courts. Its case was that the dismissal came about because of the Complainant's engagement with the Respondent regarding his out of work conduct and the way he gave inconsistent accounts of what took place in the Courts.

While the Unfair Dismissals Act 1977 does not permit a high degree of intrusion into managerial decision making, Bank of Ireland v Reilly [2015] E.L.R. 229 set out that the question is “whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

Having considered the evidence presented and the letter of the 9 September 2021, the Adjudicator found the reasons given for the Complainant's dismissal in September 2021 did relate to his out of work conduct. The decision maker referred to "serious shortcomings in your behaviour that impact on your role" with no examples given.

Findings and Conclusions

Both the Complainant and Respondent made reference to the case of Crowe (claimant) v An Post (respondent): UD1153/2014, as set out in Ryan, Redmond on Dismissal Law, 3rd edn (Dublin, Bloomsbury, 2017).  In that case, the Employment Appeals Tribunal gave a synopsis of how a decision maker should approach an unfair dismissal claim arising from criminal conduct by an employee outside of the workplace. It set out:

"There is considerable uncertainty as to whether an employee's conviction for a crime committed outside the workplace would entitle the employer to dismiss the employee. In such circumstances the employer would argue that the bond of trust had broken down. The matter is not that straightforward. The basic principle is that usually an employer's jurisdiction over misconduct of the employee ends at the company gate. A dismissal for misconduct outside the workplace can only be justified where there is sufficient connection between the crime committed and the employee's work, in such a way that would render the employee unsuitable or capable of damaging the employer's reputation. The guiding principle in cases involving misconduct outside the workplace is that the employer must be able to show a connection between the misconduct and the company's operational requirements.

As a general rule the employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some legitimate interest in the conduct of the employee. An interest would normally exist where there is some nexus between the employee's conduct and the employer's business. The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to business, employee relations or affects the reputation of the company. The test is: has the out-of-work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer's business? If it has then the employer has the right to institute disciplinary proceedings. Whether this gives the employer the right to impose sanctions, up to and including dismissal, will depend on the particular circumstances of each case. No two cases are the same and each case must be decided on its own particular merits. Because of this it is extremely difficult to have consistency of approach."

In another out-of- work conduct case, the EAT in Browne V the Mountview/Blakestown/Hartstown/ Community drugs Team (UD1447/2014) noted:

• No complaint was made to relevant personnel within the Respondent company
• The claimant’s record was generally misconduct free before the incident
• No apparent damage or harm was sustained by the Respondent or to the quality of its services

In that case the EAT found the dismissal of the Complainant was disproportionate and unfair.

Decision

The Adjudication Officer reached its conclusion for the following reasons:

1. The Adjudication Officer did not find the Respondent’s decision to institute disciplinary proceedings and ultimate dismissal of the Complainant from his employment met the test of whether the out-of- work conduct of the employee impacted adversely or was capable of impacting adversely on the Respondent's business.
2. In reaching their decision in this case, the Adjudication Officer was in no way condoning any acts of violence on another person no matter what the context.  However, in this case no nexus was provided to link the Complainant's conduct on the 14 January 2020 to the Respondent's business to justify his dismissal.
3. The Adjudication Officer also took into the consideration the Complainant's 14 years of service, the fact that neither decision maker considered alternative sanctions in their letters of dismissal was not reasonable.
4. Ultimately, the Adjudication Officer found that the decision to dismiss was not within the band of reasonable responses.

CONCLUSION

Having regard to the totality of the evidence presented, the evidence regarding mitigation and the Complainant’s conduct, the Complainant was awarded the sum of €5,000.00 which is in the region of 8 weeks net pay.

This case is a very good example of the complex factors to be taken into account for an employer if dismissing an employee for conduct outside of the workplace.

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