Towerbrook Ltd t/a Castle Durrow Country House Hotel v Young

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 16 July 2018
• Neutral Citation: [2018] IEHC 425
• Docket Number: [2017/27 CAT]
• Date: 16 July 2018

BETWEEN

TOWERBROOK LIMITED T/A CASTLE DURROW COUNTRY HOUSE HOTEL

APPELLANT

AND

EUGENE YOUNG

RESPONDENT

[2018] IEHC 425

Barton J.

[2017/27 CAT]

THE HIGH COURT

CIRCUIT COURT APPEAL

Unfair dismissal – Misconduct – Principals of natural justice – Appellant seeking to appeal against the finding of the Employment Appeals Tribunal that it unfairly dismissed the respondent – Whether the investigative/disciplinary meeting which resulted in the dismissal of the respondent was fundamentally flawed and contrary to the principals of natural justice to which the appellant expressly committed itself by the policies which it had adopted

Facts: The Employment Appeals Tribunal (EAT), on the 16th June, 2015, found that the respondent, Mr Young, had been unfairly dismissed by the appellant, Towerbrook Ltd, and awarded him €32,178 in respect his claims brought under the Unfair Dismissals and Minimum Notice and Terms of Employment Acts. On the 28th July, 2016, the Circuit Court (Judge Reynolds) upheld the decision of the EAT. The appellant appealed to the High Court from the order of the Circuit Court.

Held by Barton J that the investigative/disciplinary meeting which resulted in the dismissal of the respondent was fundamentally flawed and contrary to the principals of natural justice to which the appellant expressly committed itself by the policies which it had adopted, conducted as it was by the appellant's managing director, Mr Stokes, into his own complaint and that of the financial controller of the hotel, Ms Shairp, against a background where the behaviour giving rise to the complaints on foot of which the respondent was found to be guilty of gross misconduct arose directly as a consequence of verbal and physical abuse to which he had been subjected by the managing director. On the evidence as to what transpired at the meeting Barton J found that the investigation and ultimate decision making process involved was neither independent, thorough, impartial nor objective as it had to be if it was to comply with the policies which the appellant had adopted.

Barton J held that he would affirm the order of the Circuit Court upholding the decision of the EAT that the respondent was unfairly dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 16th day of July 2018

1 This matter comes before the Court by way of an Appeal from the Order of the Circuit Court made by her Honour Judge L. Reynolds on the 28th July, 2016, whereby she upheld the decision of the Employment Appeals Tribunal (EAT) dated the 16th June, 2015. The EAT found that the Respondent had been unfairly dismissed by the Appellant and awarded the Respondent €32,178 in respect his claims brought under the Unfair Dismissals and Minimum Notice and Terms of Employment Acts.

2 The Respondent had taken a preliminary point of objection to this Appeal on the ground that no right of appeal lay from the order of the Circuit Court made on an appeal from the EAT. In Commissioners of Irish Lights v. Sugg [1994] E.L.R. 97, Morris J. decided that there was an appeal to the High Court, accordingly, counsel for the Respondent quite correctly withdrew the point.

3 Such an Appeal proceeds in this Court by way of a de novo hearing. Evidence was given by and on behalf of the Appellant and the Respondent. There were a number of matters in controversy between the parties which are dependant to a greater or lesser extent on whether or not the Respondent's dismissal was unfair, accordingly, it was agreed between the parties that that question should be determined as a preliminary issue.

Background

4 The Appellant is a limited liability company which operates a country house hotel at Castle Durrow Demesne, Castleview, County Laois. The directors of the company are Mr. Peter Stokes and his wife. Mr. Stokes is also the managing director. He and his wife live in an apartment on the premises. Shortly after the acquisition of the property substantial renovation works were undertaken to convert use of the house and grounds into a hotel with facilities aimed at securing a share in the market for exclusive wedding venues. In carrying out the works the Appellant adopted a policy of employing local people where possible. One of those employed was the Respondent. He was engaged as a general handyman on foot of a written contract with a commencement date of the 14th February, 2000.

5 After completion of the renovation and conversion works the Respondent remained in the continuous employment of the Appellant until he was dismissed by letter dated the 22nd August, 2013. Throughout this period he reported directly to the managing director, Mr Stokes. The ground given for his dismissal was gross misconduct arising from the Respondent's aggressive behaviour and abuse towards Mr Stokes and the financial controller of the hotel, Ms. Naomi Shairp.

6 It is convenient at this juncture to make reference to certain background documents which are germane to the preliminary issue and which were made available to the Court, namely;

(a) The Respondent's contract of employment;

(b) The revised edition of the Appellant's Employee Handbook, receipt of which the Respondent acknowledged in writing on the 26th March, 2010; and,

(c) The Appellant's Disciplinary, Grievance Policy and Dignity at Work Policies.

7 The copy of the Respondent's contract of employment produced in evidence is neither dated nor signed; however, the commencement date and terms of the contract are not in issue. Provision is made for grievance and disciplinary matters, as to which the following terms are of particular relevance:

'The company requires employees to attend work regularly and punctually, fulfil their duties to an acceptable standard, conform to legally and socially acceptable standards and observe all safety and any other company regulations/standards.

In cases of gross misconduct, the company reserves the right to terminate your employment immediately. Infringement of a term of this contract or of established company rules can lead following an investigation, depending on the gravity of the breach, to an informal or formal warning, suspension with pay and/or transfer to other duties. Ultimately, persistent breaches or inadequate work performance can lead, following warnings, to dismissal. Please note that in cases of gross misconduct summary dismissal may result.

In the interest of fairness and to ensure the proper conduct of business, certain provisions to deal with matters of grievance and discipline are necessary. A comprehensive policy outlining the process of procedure to be followed will be explained to you. In all dismissal cases, full investigation will be carried out and an employee will have the opportunity to explain their case. If you have at any time a grievance or complaint that affects your work, you are encouraged to process this through the company grievance procedure.' (emphasis added).

The Employee Handbook.

8 This is intended for the use of employees as a general information and reference guide to the Appellant's practices, policies and procedures; it also sets out the Appellant's mission statement. Employees who have concerns about their treatment are encouraged to communicate these to the manager of the HR department. The stated philosophy governing the treatment of employees requires that they be treated '... with respect and dignity'. [emphasis added]

9 Specific provision is made in respect of "unacceptable" behaviours including bullying and harassment and for the procedures to be adopted and followed in the event of a complaint. Provision is also made for the imposition of disciplinary sanctions the nature of which are dependent on the gravity of the subject matter of the complaint. In this regard 'A complaint of harassment/bullying may, following investigation, lead to disciplinary action through the appropriate disciplinary procedures'. The text goes on to provide that failure by any member of staff to comply with the provisions of the policy would render the individual liable to disciplinary action.[emphasis added]

10 A comprehensive statement on bullying and harassment in the workplace, including a definition of what constitutes bullying and the forms of harassment and bullying deemed unacceptable are exemplified as are the procedures to be adopted in the event of complaint. Employees are assured that all complaints with regard to such matters will be subject to ' an independent investigation carried out by a senior manager...' and that any such investigation will be '... thorough, impartial and objective.'[emphasis added].

Dignity at Work Policy

11 In addition to the Employee Handbook, the Appellant drew up separate and specific policies to deal with dignity at work, grievance and disciplinary procedures. The Dignity at Work Policy declares that '... the dignity of each employee is both recognized and respected' and that behaviors such as bullying or harassment " will not be tolerated". Harassment is defined as including verbal, written or physical harassment which includes jostling, shoving ' or any form of assault'. Behavior which constitutes bullying includes verbal abuse, whether by shouting or insulting remarks, non-verbal abuse, whether by gestures or by the written word in whatever form and, finally, physical abuse, whether by actual bodily contact or the shaking of fists in a threatening manner. [emphasis added]

Grievance Policy

12 The stated object of the Appellant's grievance policy is to find solutions where workplace problems arise in connection with any aspect of work. Where misunderstandings or concerns arise formal and informal procedures are identified to deal with these. The formal grievance procedures are separated into three stages the last of which involves a decision by the managing director which is ' the final stage of the internal procedure.' The reference to internal...