An Employer (Represented by Irish Business and Employers' Federation) and A Worker (Represented by Butler Monk Solicitors) UD/21/83, ADJ-00031009, CA-00041272-001, DETERMINATION NO.  UDD237

This is a very interesting Labour Court case dealing with dismissal and whether it is a proportionate sanction in all the circumstances.

BACKGROUND

Appeal of Adjudication Officer Decision No(s) ADJ-00031009, CA-00041272-001.

The Adjudication Officer held that the Complainant’s claim unfair dismissal was well founded and awarded €4566 in respect of his financial loss. The Labour Court (the "Court") heard the appeal on the 10 and 11 of January 2023.

POSITION OF THE RESPONDENT

The Respondent refutes the claim that the Complainant was unfairly dismissed. The Complainant’s employment was terminated on 11 September 2020 on the grounds of serious misconduct following a fair and impartial investigation, disciplinary and appeal process.

The Complainant's gross misconduct encompassed inappropriate and unwelcome behaviour of a sexual nature towards a colleague, Ms A, amounting to sexual harassment. The Respondent has a common law and statutory duty of care to all its employees to provide a safe place of work. This includes a place of work free from harassment or sexual harassment. Sexual harassment cannot be excused. The Complainant received training on all of the Respondent’s policies and procedures, including the Dignity at Work Policy which was updated to the Bullying and Harassment policy in 2020.

Having considered the facts, the Complainant’s responses and explanations were not considered reasonable nor sufficient such as to mitigate the extreme seriousness and far-reaching implications of his actions. When considering what sanction to apply the company had regard to the seriousness of the allegations and to the representations made by the Complainant.

The Complainant was afforded fair procedures, in line with the company’s policy, the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. He was informed in advance of the nature of the allegation against him and afforded the right to representation. He was provided with a number of fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Complainant’s representations, before any decision was made or action taken. The dismissal of the Complainant was procedurally fair in all respects.

The actions of the Complainant contributed wholly to his dismissal. The Respondent’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place. A reasonable employer in the same position and circumstances would have reached the same determination in the circumstances of the within case.

The Respondent referred the Court to the cases of Looney & Co. Ltd v Looney UD 843/1984, A senior Men’s Clothing Salesman and A Clothes Retailer ADJ-00016285 and Murray v Meath County Council UD 43/1978 in support if its position.

POSITION OF THE COMPLAINANT

In June 2020, the Complainant sent a video in error to a colleague on WhatsApp causing her upset. On realising his mistake he deleted the video and deleted the colleague’s details from his contact list. The complainant has repeatedly apologised for his error and for the upset caused to Ms. A. These factors were not considered in mitigation.

The Complainant’s action did not constitute misconduct or serious/gross misconduct. The Complainant made a simple mistake. He acknowledged that mistake and had apologised for the upset caused to his colleague. Gross misconduct presupposes an element of intentional and deliberate misconduct. Nothing in this case indicates any intention of deliberate misconduct or malice and the facts of the case do not support a finding of serious/gross misconduct.

There is a crucial lack of evidence. The unintended recipient saw the video for two seconds before she deleted it. Nobody else saw the video. The process was tainted by bias with the issues being prejudged and the penalty predetermined.

The dismissal letter made no reference to the Complainant’s admission, his apologies, or the fact that the video was sent in error, or that the colleague was not the intended recipient. Furthermore, no account was taken of the gravity and effect of the dismissal on the Complainant.

Given all of the circumstances of the case, including the Complainant’s admission and repeated apologies, the penalty imposed was disproportionate, excessive, and unjust. The Respondent has acknowledged his long service and clean record, yet it took no account of the gravity and effect of the dismissal on the Complainant.

The Complainant referred the Court to the cases of Frizelle v New Ross Credit Union Limited [1997] IEHC 137, Bunyan v United Dominion Trust [1982] IRLM 404 and McGee v Beaumont Hospital ID/136/184 in support if its position.

THE RELEVANT LAW

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

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

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

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

PROPORTIONALITY

The Court must assess whether in all of the circumstances of this case the sanction of dismissal was proportionate and appropriate. In considering the question of proportionality, the Court’s attention was directed to a number of cases by the parties. The test for reasonableness was set out in Noritake (Irl ) Ltd v Kenna (UD 88/1983) as follows:

1) Did the company believe that the employee misconducted himself as alleged?

2) If so, did the company have reasonable grounds to sustain that belief?

3) If so, was the penalty of dismissal proportionate to the alleged misconduct?

The issue was further considered in Bank of Ireland v Reilly [2015] IEHC 241, where Noonan J. noted at paragraph 56 that:

“…In assessing the reasonableness of the employer’s conduct in relation to 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.”

The Respondent asserts that it had no option other than dismissal, yet this does not tally with the evidence of the decision maker, Mr N, whose evidence was that the Complainant was a good employee and that he would re-employ him again. Stage 5 of the Disciplinary Policy sets out alternatives to the sanction of dismissal. While the Court heard evidence that alternative options to dismissal were considered, in the view of the Court no serious consideration was given to the three other options available, namely Demotion, Relocation or Unpaid Suspension. The Court is of the view that a separate business decision by the Respondent’s decision to outsource security roles was an influencing factor in arriving at the decision to dismiss the Complainant.

The Court notes that the Complainant made repeated apologies throughout the process. The Respondent accepted that the Complainant was remorseful. However, in the Court’s judgement, insufficient consideration was given to the fact the video was sent in error, the colleague was not the intended recipient, and the recorded statements indicated his efforts to repeatedly apologise for what had happened.

In considering the various cases opened to the Courts, and having regard to the band of reasonableness test and the facts as set out in this case, the Court does not consider that due consideration was given to alternative options to dismissal. Having regard to all of the circumstances, when balancing the impact of the Complainant’s conduct on the Respondent as against the impact of the dismissal on the Complainant, the Court is of the view that the sanction was disproportionate.

In making this decision the Court notes that the Complainant had 12 years’ service with the Respondent, with no prior performance issues or warnings. The Complainant took full responsibility for sending a video of adult content in error to a colleague.  It was accepted by the parties that the forwarding of the video was a genuine mistake. The Complainant made repeated apologies throughout the process. It was accepted that the Complainant was remorseful.

In the Court’s view, the Complainant’s conduct was careless and naive, but there was no malice. While he displayed a lack of judgement in his conduct during the investigation, in the Court’s view, the action taken by the respondent against the claimant, having regard to all of the circumstances, was disproportionate and a lesser penalty short of dismissal should have been considered and imposed.

REDRESS

Having regard to the particular circumstances of this case, the Court does not consider reinstatement or reengagement to be appropriate forms of redress. The Court is of the view that compensation is the most appropriate remedy.

The Complainant’s salary with the Respondent was €761 per week for a 45-hour week, giving an annual salary of €39,572. His employment was terminated on 11 September 2020. The Complainant spent from September 2020 until September 2021 in his country of origin after suffering two family bereavements. He gave evidence that he applied for jobs online during this time. The Complainant returned to Ireland in September 2021 and was in receipt of social welfare until June 2022. He secured a part-time security role in June 2022, working 36 hours per week over three days. The hourly rate is €11.00 per hour.

In determining the amount of compensation, which is just and equitable, the Court takes into account financial losses incurred by the Complainant since the termination of his employment and a continuation of that level of loss after he secured employment at a lower rate of pay.

As the Complainant was out of the country from September 2020 until September 2021, he was unavailable for work for this period. The financial loss arising from his dismissal therefore relates to the losses he suffered from September 2021, when he returned to Ireland, until 2022 when he secured a role at a lower rate of pay of €396 per week. The Court determines the financial loss of earnings suffered by the Complainant was approximately €34,000. The Complainant is required to demonstrate reasonable efforts to mitigate this loss.

In Sheehan v Continental Administration Co Ltd (UD 858/1999) the EAT held as follows: -

• "a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

While the Complainant gave evidence that he made efforts to mitigate his losses on his return in September 2021, he failed to demonstrate that those efforts were consistent throughout the period or that they were made with the standard of commitment and diligence required. The Court finds that the Complainant failed to produce credible evidence that he made sufficiently rigorous attempts to mitigate his loss in the period between his dismissal and the date of the within hearing. In such circumstances, the Court considers that a reduction of 50% in the amount of compensation to be awarded is just and equitable.

The Court also has regard to the contribution made by the Complainant to his own dismissal. Having regard to his own contribution to his dismissal the Court considers that a further reduction of 20% in the amount of compensation to be awarded is just and equitable.

Weighing all of these factors, and having regard to all of the circumstances, the Court determines that the appropriate amount of compensation is €10,200 as just and equitable.

DETERMINATION

The Court determines that the appeal is well-founded. The Decision of the Adjudication Officer is set aside. The Court so determines.

CONCLUSION

This case is a very good example of the factors that need to be taken into account in deciding to impose a sanction of dismissal or a lesser sanction.