An Post (Represented by Mr Cathal McGreal BL; as Instructed by Mr Paul Carroll, Solicitor, an Post) v Claire Stephens

• Jurisdiction: Ireland
• Court: Labour Court (Ireland)
• Judgment Date: 17 December 2018
• Judgment citation (vLex): [2018] 12 JIEC 1704
• Date: 17 December 2018
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.UDD1867 ADJ-00001805 CA-00002448-001

Labour Court

FULL RECOMMENDATION

UD/17/100

DETERMINATION NO.UDD1867

ADJ-00001805 CA-00002448-001

PARTIES:

An Post (Represented by Mr Cathal McGreal BL; as Instructed by Mr Paul Carroll, Solicitor, An Post)

and

Claire Stephens

DIVISION:

Chairman: Ms Jenkinson

Employer Member: Ms Doyle

Worker Member: Ms Treacy

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

SUBJECT:

1 1. Appeal of Adjudication Officer’s Decision No: ADJ-00001805 CA-00002448-001.

BACKGROUND:

2 2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 26 June 2017 in accordance with Section 8(A) of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on 24 October 2018. The following is the Determination of the Court:

DETERMINATION:

3 This is an appeal by Ms Claire Stephens against the decision of an Adjudication Officer under the Unfair Dismissals Act 1977–2015 (the Act) in her claim of unfair dismissal against her former employer, An Post. The Adjudication Officer found that the Complainant’s complaint was not well-founded.

4 For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Claire Stephens will be referred to as “the Complainant” and An Post will be referred to as “the Respondent”.

Background

5 The Complainant was employed by the Respondent as a Postal Operative in the Galway Mail Centre from 11th June 2001 until her dismissal on 5 ^th February 2016.

6 On 6 ^th February 2016 the Complainant referred a claim under the Act to the Workplace Relations Commission. The Adjudication Officer issued his Decision on 20 ^th June 2017, the Complainant appealed the Decision to this Court on 26 ^th June 2017.

7 This appeal was heard at the same time as a number of other appeals submitted to the Court by the Complainant. Extensive submissions and documentation were submitted in the course of the appeal which the Court has summarised in this Determination.

Summary of the Respondent’s Case

8 Mr Cathal McGreal, BL instructed by An Post Legal Services, on behalf of the Respondent, stated that the Complainant was dismissed by letter dated 22nd July 2015. The reasons for her dismissal were outlined as follows:-

• a. Persistent failure to adhere to management instructions regarding her interaction with another named employee.

b. Repeated breaches of confidentiality.

c. Unacceptable conduct towards her managers.

9 In its submissions and accompanying documentation to the Court, the Respondent outlined the situation facing it when it engaged in a disciplinary process with the Complainant. Mr McGreal said that the Complainant had been instructed on 16th September 2014 regarding the confidentiality of matters giving rise to the Respondent’s concern. However, in spite of this advice, on 9 ^th October 2014, the Complainant became involved in an incident and in doing so appeared to ignore entirely what she had been directed to do (and not to do). On 9 ^th October 2014, she engaged in exchanges with a named colleague, whom she was directed not to engage with (other than on work related matters) and as a result caused disruption in the workplace and upset to that colleague. When questioned about the exchange she became agitated with management and threatened to have the matter dealt with in the courts. She was cautioned about naming people without any evidence. Mr McGreal said that she then proceeded to engage with management in a hostile manner at a meeting on 13th October 2014. She persisted in re-opening past grievances, refused to accept that she was not permitted to ventilate confidential matters and accused management of telling lies. Following the meeting it was decided to suspend the Complainant with pay, as the Respondent could not allow a similar altercation or incident to occur. The Complainant was suspended pending an investigation into the incident concerned.

10 Mr McGreal said that it was made clear in the letter of 19th November 2014 to the Complainant that the Respondent viewed the matter very seriously and that it was considering disciplinary action up to and including dismissal. He said that every opportunity was given to the Complainant to respond to the allegation and to make representations. In that letter it was made very clear to the Complainant that a report into a review of matters she had raised relating to a number of her colleagues, was strictly confidential and not to be discussed with any other employees. As the Complainant mentioned in a letter to Mr Séan Madden, HR Manager Galway that she had informed others of the contents of the report on the 19th November 2014, the Respondent accused the Complainant of breach of confidentiality. The Complainant had also admitted speaking directly with her colleagues about the report, again in breach of explicit instructions to the contrary. Mr McGreal said that she was also accused of breaching a specific instruction not to interact with a named work colleague and had caused upset.

11 Mr McGreal said that, in May 2015, despite being under notice that her dismissal was under consideration for the earlier breach of confidence, the Complainant wrote to several colleagues referring to statements they had given confidentially in an investigation carried out into allegation made by her and she sought to place a certain degree of pressure on them in relation to evidence they might offer in respect of a personal injuries claim which she was pursuing against the Respondent. The Respondent alleged that this action by the Complainant was conducted in a manner which breached confidence and caused controversy. The Complainant was informed that she was dismissed on 22 ^nd July 2015.

12 The Complainant appealed the decision to dismiss but the decision was confirmed by letter of 26th January 2016. The decision on appeal revised slightly the finding of failure to adhere to management instructions by removing the word ‘persistent’ from that dismissal ground. The Complainant continued to be paid during her appeal. Her dismissal took effect from 5 ^th February 2016. Mr McGreal maintained that the Complainant was offered an oral hearing and representation and her rights to fair procedure were observed throughout.

13 Mr McGreal stated that the Complainant never accepted that she was dismissed for the reasons outlined in the letter dated 22 ^nd July 2016. Instead the Complainant argued that she was dismissed because she is suing the Respondent for sexual harassment and because she wrote a suicide note.

14 He said that the Complainant had written volumes of letters and complaints and in them she returns again and again to three key incidents involving three perceived perpetrators of wrongdoing. These are the following:-

• a. In May 2005 Ms A is claimed to have made unwelcome sexual advances towards the Complainant,

b. On 13th August 2012 Mr X left an inappropriate postcard with allegedly homosexual connotations on the Complainant’s workbench, and

c. On 9 ^th October 2014 Ms B is claimed to have hidden post (known as ‘freepost’) from the Complainant. Preceding this incident Ms B was also alleged to have spread rumours (that the Complainant was homosexual).

15 Mr McGreal said the allegation of spreading rumours was found to be without foundation as a result of inquiries undertaken by the Company.

16 He said that it was the circumstances (and the way in which the Complainant interacted with her colleagues and managers) with respect to the third of these incidents that gave rise to the decision to dismiss. However, he said that all three incidents and the three perceived perpetrators form the basis on which all of her claims seem to have been built. He said that almost everything in the Complainant’s many complaints can be traced back in one way or another to these three incidents and these three people. Mr McGreal told the Court that Ms B featured repeatedly in the Complainant’s personal injuries claim as a person whom the Complainant had a plethora of complaints against.

17 In support of his contention that the dismissal was not unfair, and that it was reasonable in the circumstances to dismiss the Complainant, Mr McGreal relied upon Burchell v British Home Stores [1978] IRLR 379 which held:

• “First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the Tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the Tribunal to examine the quality of the material which the employers had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’, as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

18 Mr McGreal contended that it was appropriate for management to give instruction to their employees concerning the confidentiality of matters arising from previous complaints and to take measures to contain...