Case Number: ADJ-00018955. Workplace Relations Commission

• Docket Number: ADJ-00018955
• Date: 04 November 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Act, 1998 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant commenced working as sales representative with the Respondent on 7th June 2016.

Summary of Complainant’s Case:

CA-0024419-001 The Complainant withdrew his claim for unpaid annual leave. CA-0024419-002 & CA-0024419-003 The Complainant complains he has been unfairly dismissed, discriminated against due to his disability in conditions of employment, failure to provide reasonable accommodation, and victimised. The Complainant withdraws his complaint of discriminatory dismissal. The Complainant was unfit for work from 27th November to 4th December 2017 and was certified absent due to a back problem. He was also suffering work-related stress and anxiety. The Complainant is a musician and participates in live performances on a casual basis. While on sick-leave, he performed on a Friday evening outside of normal working hours in Galway. On 8th January 2018 the Complainant attended an investigation meeting with a Director and Manager. He explained his absence on sick-leave was due to stress and anxiety. He was encouraged to continue drumming by his doctor while on sick-leave. The Complainant offered to attend the company doctor and obtain a revised certificate from his doctor to show the real reason he was absent was due to his mental health. He tried to explain his stress was work-related, but was told only the letter would be discussed at the meeting. The Complainant attended a disciplinary hearing with an external party appointed by the Respondent. He submitted a further sick-certificate for the period 27 November to 4 December 2017 for a long-standing back problem and work-related stress. He was asked how he could play the drums if he was sick. The Complainant said he loves drumming and work-related stress does not prevent him playing. He only receives nominal payment for the show. The show took place at 10.30pm. The Complainant sought a breakdown of the hearings, a statement from the employee who sent the video of the Complainant in Galway to the company and levels of misconduct applicable. The witness statement was not provided. On 22 February 2018 the company wrote to the Complainant regarding work emails and screenshots being forwarded from his work email to his personal email. The letter stated the Complainant breached in the most serious manner his contract of employment and the trust and confidence of the employer/employee relationship. It questioned why the Complainant took copies of the information and demanded an undertaking for the return of the material or deletion immediately, and confirmation it has not been distributed to any third parties. By email of 23rd February 2018 the Complainant confirmed all information was being used for work purposes, all information had been destroyed and was not distributed to any third party. He apologised. The Company sought proof the material was destroyed. The Complainant refused as he was unwilling to allow access by a third party to his emails. On 9th April 2018 the Complainant went on work-related stress sick-leave until August 2018. The Complainant was requested to attend a determination meeting on 24th May 2018 regarding his drumming while on sick-leave. The Complainant submitted a grievance to the company on 18th May 2018 alleging that he is being bullied via the conduit of a long drawn out internal investigation. He complained he is not aware if his job is at risk. He complains this stress led to him going on sick-leave and sought an external investigation of his grievance. The Company appointed a Director to investigate the grievance internally. The Director appointed to investigate his grievance is a brother of the person who is the subject of the grievance. On 22nd May 2018 the Complainant was certified unfit to attend work. On 24th May 2018 the company proceeded with the determination meeting regarding the drumming incident in the Complainant’s absence and gave him a first verbal warning. On 1st June 2018 the Complainant received the outcome of the grievance that there is insufficient evidence that any form of bullying via a conduit of a long drawn out internal investigation has taken place, and delay was due to the Complainant rejecting minutes on 3 occasions. CA-0024419-004 The Complainant claims he has been penalised under S28 of the Safety Health and Welfare at Work Act 2005. The Complainant says his grievance amounts to a protected complaint under the Safety Health and Welfare at Work Act 2005. The investigation of the grievance was inadequate, the Complainant was not informed of the process, or witnesses interviewed and did not have an opportunity to comment on witness evidence. The Complainant appealed his warning and the grievance outcome. An external party was appointed to hear the appeals which were unsuccessful in July 2018. The Complainant returned from sick-leave in August 2018. On his return the Complainant was requested to attend an investigation into the emails and screenshots sent to his personal email in February 2018 on 30th August 2018. An external investigator was appointed to investigate the data sent from the Complainant’s work email to his personal email on 12th and 19th February 2018 which included information regarding sales figures, clients, a price file and sales quotation. The Complainant said he sent the emails as he had not reached his sales figures and wanted to work on this outside of work hours. He did not regard this as a breach of policy, the information was not shown to any party, it was treated confidentially. He did not access the data on this laptop or Ipad due to slowness and data limitations. The practice of forwarding emails to personal addresses was carried out by other employees. He gave an undertaking that all information had been deleted. He had never seen a non-disclosure agreement. He did not agree to independent verification of deletion as he did not want personal emails accessed by other parties. Other witness evidence in the investigation was that screenshots were not encouraged or useful. The Complainant met his sales targets for 2017 and quarter 1 of 2018, there were data allowance issues related to showing videos to customers, there was no non-disclosure agreement on file but it was a standard document provided to the Complainant, the company policy on electronic mail was relevant to the alleged breaches, the timing of the emails sent by the Complainant occurred when his disciplinary process was scheduled for 19th February 2018. The Complainant complained about another employee’s conduct that he made a racist and derogatory remark on 11 September 2018. This was investigated by the Respondent, who said another statement had been made in a private conversation between the employee and a relative, and no further action was required. The Complainant was dissatisfied with the Respondent’s investigation as he was not interviewed or informed of what other witnesses said, nor allowed to respond. The investigator found there was a discrepancy between the parties as to whether the Complainant met his sales targets in 2017, but the act of sending the emails was a breach of the policy regardless of the reason. The Complainant was aware another employee had breached the policy in sending emails to himself and could not rely on this. The Complainant was invited to a disciplinary hearing with a Director as notetaker and an external party conducting the hearing. The Complainant outlined his lack of trust in the investigation and disciplinary process, the external investigator was not impartial, and this was a manhunt ongoing since 2017. The Company arranged a determination meeting on 20th November 2018 to share the findings. The Complainant’s employment was terminated as the Director found no reasonable explanation had been provided for forwarding the information or failing to provide proof this was deleted, it breached policy and a prior sanction was taken into account. The appeal hearing with an external party took place on 10th December 2018. The Complainant said he should not have been dismissed, he was not given a fair process or legal representation, he could not cross-examine witnesses, other employees had done the same thing and were not dismissed, the Director was biased as he acted as a witness in the investigation and should not have been a decision maker. The burden of proof lies on the Respondent to prove the Complainant has been dismissed fairly. There is an obligation on the Respondent to act reasonably where it seeks to rely on the “conduct” of an employee as justification for dismissal. (Cox Corbett & Ryan...