August 01, 2022
This case highlights the importance of ensuring a fair procedure is followed during a disciplinary process, that hearings are held by an impartial person, that there are no pre-determined outcomes and that a proportionate sanction is applied. The Employer in this case was a small Organisation and the Adjudicator noted how that can bring challenges in how a fair and independent process is conducted. However, the owner involved himself in all aspects of the investigation process, the disciplinary process and the appeal process and this was noted by the Adjudicator as being deficient in fairness and objectivity. It was also noted that decisions were pre-determined, and that the Employer had no interest in the Employee’s responses or questions throughout the process.
The Complainant commenced employment on 5th February 2018 earning a gross weekly wage of €625 at the time of dismissal.
An incident occurred on 19th June 2020, where the Complainant told the owner “f**k you”or “f**k off” and raised her middle finger. Later that evening, the Complainant apologised to the owner.
The Complainant submits that she was dismissed and that the Respondent failed to provide substantial grounds to justify the dismissal and that the punishment of dismissal was not proportionate.
Summary of Complainant’s Case
The Complainant submitted that she was good at her work and many customers requested her help specifically because of her horticultural expertise in order to make their purchases. During covid the Respondent was allowed to remain open as they sold agricultural seed and the Complainant often worked extra unpaid hours and it was submitted that the Complainant increased sales during this period. In May 2020 a new employee commenced employment and despite the Complainant’s senior role she was not involved in her recruitment or her training. It was the Complainant’s belief that the new employee was brought in to replace her.
The Complainant gave evidence that she had a very informal friendly relationship with the owner and they would regularly WhatsApp each other informally using inappropriate language but that the Complainant felt a coolness in their relationship upon the arrival of the new employee and that the owner did not seek her input as much with changes including the layout of the garden centre.
In early June 2020 there was a staff meeting and a financial advisor to the company was introduced to employees and chaired the meeting where proposed changes were discussed. The Complainant questioned what experience the financial advisor had in running a garden centre but did not receive an answer. No minutes of this meeting were issued at the time.
On 19th June 2020 the Complainant was advised of a voucher scheme that was to be implemented whereby customers would spend money and get a stamp on a card which they could eventually redeem with a voucher to spend in the store. Shortly afterwards the Complainant saw a different scheme appear on social media which was very different from what she had been advising customers about and when she enquired into it with other staff members, nobody knew about it.
Around 3pm the Complainant met with the owner and asked him about the different voucher schemes and was annoyed that she was not given accurate information. As she walked away the Complainant gave evidence that she told the owner “f*ck you” or “f*ck off” and raised her middle finger to him and was upset and felt under a lot of pressure. The Complainant gave evidence that no customers saw this incident.
Around 6pm as the Complainant was finishing up for the day, she went looking for the owner and apologised to him. The owner responded that she could keep her apology and handed her a letter inviting her to an investigation meeting which she believed had been prepared. It was submitted that the Respondent treated her unfairly at the investigation meeting, which was conducted very unprofessionally, and that the investigator (the financial advisor) exceeded his role as fact gatherer. The Complainant submitted that she advised the financial advisor that he should not be involved in the investigation but that he ignored her. The Complainant noted that as an employee/agent of the owner, the investigator was not independent, his own son was a witness and when she told him that he should not be involved as his son was a witness, he replied that his son only gave a little statement.
It was submitted that the financial advisor introduced into the investigation, issues that had not previously been brought to the Complainant’s attention such as her performance, and he dismissed her claim that the owner also used bad language to her.
It was also submitted that using alleged statements from staff members, which were unsigned and only received by the Complainant five days before investigation meeting, was not acceptable or fair. The Complainant submitted that she rebutted the alleged witness statements, but the Respondent failed to follow up with the questions the Complainant raised. The Respondent failed to give the Complainant adequate notice of meetings and moved the Complainant from paid suspension and advised her to get a sick cert.
The decision to dismiss was made and issued by the owner and it was set out that it was owing to “the relationship (between them) broken down beyond repair and accordingly in the best interest of the business” and refers to the Complainant’s “unacceptable conduct towards management and (her) continuing failure to take instruction”.
The Complainant was advised that the invite to the appeal was a draft appeal, and the appeal was carried out by the owner who had no impartial person present and there was no mention of gross misconduct during this process. There was no basis given for her suspension and no investigation, disciplinary report and no outcome to the appeal issued. The onus was on the Complainant to supply the owner with typed transcripts of recorded meetings, another indicator of the unfairness of the process.
The Complainant’s evidence was that she had never received a warning before and had a good relationship with the owner and that they had both used the “f**k” word to each other before and she did not believe this had caused offence in the past. In her evidence the Complainant advised that she never received a copy of any investigative report.
In cross examination the Complainant advised that she felt the letter she received from the owner advising of an investigation had been prepared as the owner issued her with the letter within three hours of the incident happening. The Complainant accepted that using bad language and giving the middle figure was not appropriate and that she knew that the owner was annoyed and that was why she apologised. The Complainant submitted that she did not raise concerns with the investigation through the grievance procedure as it all happened so quickly.
In response to questions regarding efforts to mitigate her loss, the Complainant submitted her loss in earnings to date were €8,672 and she had incurred additional losses of €5,280 including expenses incurred as a result of having to proceed with the complaint.
Summary of Respondent’s Case
The Respondent denied that the Complainant was unfairly dismissed and submitted that they were left with no alternative but to terminate her employment.
The Respondent submitted that the Complainant commenced employment as a Horticulturist and was promoted a year later to a manager. The Respondent noticed a change in her attitude towards the owners where she regularly used foul and abusive language when dealing with them in front of staff and around the shop.
It was submitted that the Complainant also started making derogatory remarks about the owners to staff and customers including asking one of the managers if he was off to meet his girlfriend in front of people when he was leaving the office. The owner met her and asked her to refrain from using abusive language and making comments in front of staff and customers. The owner was hoping that it would sort itself out as he believed the Complainant could do a good job.
On the 2nd of June a staff meeting was held. Three new staff had joined the company and the owner wanted to introduce the appropriate reporting structures, policies and procedures that would help to better manage the business. At this meeting the Respondent found the Complainant extremely disruptive and critical, stating in front of the new staff, that if another named manager did not retire ‘she would be off’. Eventually a number of actions were agreed, some to be carried out by the Complainant and the Complainant was spoken to afterwards and asked to cooperate to ensure things got done. However, nothing changed, and the Complainant did not carry out any of the agreed actions.
On 11th June 2020 at 10am the owner met the Complainant and asked her if there was something wrong and if he could help and the Complainant replied that she was alright. The Complainant was advised again that her attitude and behaviour needed to change.
On the 19th of June 2020 the Complainant told the owner "f*ck you" or “f*ck off” and made a derogatory gesture of putting her middle finger up to him in front of other members of staff and loud enough so that it was heard in the shop by others. The Respondent was unable to accept such behaviour and invited the Complainant to an investigation meeting and she was suspended with pay pending the investigation. Following this investigation, the Complainant was invited to a disciplinary meeting eventually held on 17th July 2020 and conducted by an external person and after which the owner made the decision to dismiss the Complainant. The Complainant appealed this decision and at the appeal the owner offered the Complainant a package in appreciation of her work with the Respondent. This was rejected by the Complainant.
The owner gave evidence that that after the incident he contacted his HR advisor and decided to write up the letter inviting the complainant to an investigation. The owner’s evidence was that he is not a HR person and he tried to do what he could do in carrying out the investigation and got two external people involved. In cross examination he was unable to confirm if he gave consideration to her apology before he issued the letter advising of the investigation and advised that he regarded the matter serious enough to warrant dismissal. The owner also confirmed that the appeal meeting lasted approximately one minute.
Following the hearing, the Respondent, by way of response to the Complainant’s efforts to mitigate her loss, submitted that the Complainant had given evidence at the hearing that she was not interested in compensation and that the Respondent did the best in the circumstances. It was also submitted that monies claimed by the Complainant had been paid to her and that expenses that she was claiming for did not amount to loss of income.
Findings and Conclusions
It was not disputed that the Complainant had been dismissed. The Complainant submits that the dismissal was unfair, and the Respondent submits that they were left with no alternative but to terminate the Complainant’s employment owing to “unacceptable conduct towards management and (the complainant’s) failure to take instruction”.
It was accepted that the Complainant told her manager, the owner “f**k you” or “f**k off” and gave him the middle finger. It was accepted that the Complainant apologised for her inappropriate language and behaviour before the Complainant was advised that there would be an investigation. It was not in dispute that the financial advisor conducted the investigation, but no investigation report was issued; that the owner advised the Complainant that the matter would proceed to a disciplinary meeting. It was not in dispute that the owner was the person who advised the Complainant that the result of the disciplinary meeting was her dismissal; that the owner conducted the appeal, and that no decision was issued regarding the appeal. It was furthermore not in dispute that both the Complainant and the owner had previously used inappropriate words to each other and that unsigned statements were furnished to the Complainant. It was disputed by the Complainant that management had spoken to her about poor performance prior to the investigation.
If the process that is followed by the Respondent, while not entirely faultless, is within the scope of what could be considered a reasonable response in the particular circumstances, then the employer's actions will be deemed to be acceptable.
In the instant case, it was accepted by the Complainant that her behaviour and language was inappropriate and resulted in the commencement of an investigation. The Complainant also apologised before she was aware of any decision by the Respondent to investigate her behaviour. The letter inviting the Complainant to an investigative meeting, however, refers to a number of other matters to also be investigated. Having heard the evidence and submissions it is unclear whether the purpose of the disciplinary meeting was regarding all the incidents referred to in the investigation letter as no report was issued after the investigation and no specific details of allegations, such as dates, were put to the Complainant at the outset of the process. The Adjudicator also noted that there was a conflict in evidence as to whether the Complainant had been made aware that the Respondent was unhappy with her performance.
It is accepted that the Respondent is a small organisation and that can bring challenges in how a fair and independent process is conducted. This does not excuse the Respondent of their responsibilities ensuring, as per their own policy, “each case will be treated consistently and fairly”. The Respondent appeared to recognise some part of this responsibility and saw the need to appoint persons outside the organisation to investigate and proceed with the disciplinary process. However, the Adjudicator found it extraordinary that the owner, who was the subject of the inappropriate language, saw it fair and appropriate to involve himself in all aspects of the investigation process, the disciplinary process and the appeal process.
Taking all the evidence and submissions into consideration the Adjudicator found that the manner in which the investigation, disciplinary meeting and appeal meetings were conducted were deficient in fairness and objectivity and reviewing the minutes of the meeting it would appear that decisions were predetermined and that the Respondent was not interested in the Complainant’s responses or questions. There is no doubt that the Complainant’s language and behaviour to the Respondent was inappropriate, and the Complainant did contribute to her dismissal, but the disciplinary sanction was not proportionate, and the dismissal was unfair. Therefore the Complainant’s claim is well founded.
Having considered the remedies available the Adjudicator decided that reinstatement or re-engagement of the Complainant was not a practical option in this case and that compensation was the appropriate redress in this case.
With regards to redress the Complainant submits that her losses incurred, less employment secured amounts to €7,422. The Complainant also submitted other losses incurred including costs as a result of having to proceed with this complaint.
Taking into consideration her actual losses due to the dismissal, the Adjudicator awarded the complainant €7,000 and taking into consideration her contribution to her dismissal, the Adjudicator reduced this by 10% and award the complainant €6,300 for her unfair dismissal.
The Adjudicator found it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €6,300.