United Parcel Service CSTC Ireland Ltd (Represented by Irish Business and Employers' Confederation) v Andrea Kiss
| Jurisdiction | Ireland |
| Judgment Date | 05 March 2020 |
| Judgment citation (vLex) | [2020] 3 JIEC 0503 |
| Docket Number | FULL RECOMMENDATION DETERMINATION NO.UDD2018 ADJ-00012865 CA-00016959-002 |
| Date | 05 March 2020 |
| Year | 2020 |
| Court | Labour Court (Ireland) |
FULL RECOMMENDATION
UD/19/125
DETERMINATION NO.UDD2018
ADJ-00012865 CA-00016959-002
Labour Court
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Mr Hall
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
1. Appeal of Adjudication Officer Decision No: ADJ-00012865 CA-00016959-002.
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 4 June 2019 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 20 February 2020. The following is the Determination of the Court:-
This is an appeal by United Parcels Service CSTC Ireland Limited against the decision of an Adjudication Officer ADJ-00012865, CA-00016959-002 under the Unfair Dismissals Act 1977 – 2015 (“the Acts”) in a claim of unfair dismissal by Ms Andrea Kiss.
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Andrea Kiss will be referred to as “the Complainant” and United Parcels Service CSTC Ireland Limited will be referred to as “the Respondent”.
The Adjudication Officer held that the dismissal was unfair and ordered the Respondent to pay her €37,500.00 — estimated as her loss over the two years following her dismissal.
The Complainant was employed as a General Ledger Staff Accountant from September 2015 and was dismissed on 27th July 2017.
The Complainant lodged her claim with the WRC on 21st January 2018, the hearing before the Adjudication Officer took place on 9th October 2018, and her Decision was issued on 26th April 2019. The Respondent referred its appeal to the Labour Court on 4th June 2019.
The Complainant was employed as a General Ledger (Level 2) Staff Accountant in September 2015. Her place of work was the financial offices in City West. On 26th September 2016, another employee of the respondent, Mr X, made a formal complaint of sexual harassment against the Complainant. Mr X listed seven instances of alleged sexual harassment over a period of several months in 2016:-
• i. The Complainant waiting for him in reception of an evening.
ii. The Complainant waiting for him in the car park in the mornings.
iii. Constant sending of messages in work until Mr X blocked her.
iv. Two occasions where the Complainant approached him in front of colleagues, the first occasion ‘asking him out’ and the second approaching him in front of colleagues.
v. The Complainant staring at him at the company BBQ.
vi. Another employee told Mr X that the Complainant was following him on Facebook.
vii. Following him in the workplace.
A copy of this complaint was provided to the Complainant who was invited to make a written response if she wished. A manager was appointed to investigate the complaint with support from a designated member of HR. The Complainant made a written response in advance of meeting the investigators. In her response, the Complainant set out a narrative of several months regarding her interactions with Mr X.
The matter was the subject of an investigated under the Dignity at Work Policy. The investigator's report which was issued on 16th November 2016 upheld two of the allegations (iv and v) and concluded that the Complainant had behaved in an unprofessional manner towards Mr X. It found that there had been a breakdown in the working relationship between them and recommended that the Complainant and Mr X should meet together with HR in order to explain any misunderstanding and to foster a good working relationship.
The Complainant appealed the outcome of the investigation. This process overturned one of the two allegations which had been found against her. The Complainant agreed to mediation however, as Mr X declined, mediation did not take place. On 12th December 2016 the Complainant wrote to HR informing them that if Mr X did not engage in mediation, she would make a complaint of sexual harassment against him.
On 20th December 2016 the Complainant made a formal complaint against
Mr X, alleging sexual harassment, bullying and lying. The specific points of the Complainant's grievance were:-
• i. The interactions between them in 2016 were now unwelcome as he never had any intention of asking her out.
ii. Lying to the Complainant about having a girlfriend.
iii. Mr X having made a complaint against her.
iv. Mr X complaining about the Complainant asking him out in June 2016.
v. Mr X having avoided her after she had asked him out.
vi. Mr X not engaging when she approached him in September 2016.
vii. Mr X's decision to decline mediation.
The Complainant's complaint was investigated by a new panel of investigators. The outcome of the investigation was issued on 13 March 2017. The key findings of the investigation were:-
• • The Complainant confirmed that her interactions with Mr X were not unwelcome to her.
Mr X confirmed he had lied to the Complainant about having a girlfriend to avoid hurting her feelings when he realised, she wanted to be more than friends.
Mr X had told the previous investigator he had lied about having a girlfriend.
Mr X's complaint had been made in good faith though it was not upheld in its entirety.
There was an unresolved dispute between the parties as to the precise words used during the 29th June 2017 incident though the sequence of events was not in dispute.
The relationship between the parties had broken down and they should not interact unless it was necessary for work. That any professional interactions should be civil and courteous and that this “lack of interaction protects both from any misunderstanding and/or exposure to further allegations.”
Mr X's decision to not engage with the Complainant unless it was on a work-related matter did not constitute unprofessional or unacceptable behaviour.
That Mr X declining to engage in voluntary mediation did not constitute bullying and that this part of the complaint was malicious.
None of the allegations made by the Complainant were upheld and one was found to be malicious. The matter was put forward for a disciplinary hearing regarding the making of a malicious complaint.
The disciplinary hearing took place on 28th April 2017 concerning the allegation that the Complainant had made a malicious complaint. It concluded that while the decision of Mr X not to engage in mediation was not bullying, the complaint by the Complainant had been made in good faith.
On 2nd April 2017, the Complainant made a further complaint alleging that the two previous investigations had been biased, flawed and unfair on her. The Respondent informed her that it could not conduct a third investigation into the same set of facts but offered her a review of the process. A review was undertaken by HR. The outcome of which was issued on 25th May 2017. It did not uphold her allegations and found that the complaint did not constitute a legitimate grievance.
The Complainant was successful in a competition for a Level 3 post and was promoted on 22nd May 2017 to General Ledger (Level 3) Staff Accountant.
On 29th May 2017 the Complainant sent an email to Mr Y, a colleague and friend of Mr X and on 12th June 2017, she sent an email to Mr X, as a result of which Mr X made a second formal complaint of harassment and bullying against the Complainant. He alleged that there had been an attack on him, and his character and her correspondence was not welcome.
The matter was investigated, and a report issued on 27th July 2017. It found that the Complainant had never disputed that she wrote and sent both emails; the outcome upheld the allegations against the Complainant and the matter was put forward for a disciplinary hearing. It concluded that the Complainant's actions were such as they were most likely to continue, and she was unable to engage in a professional manner with Mr X or to simply leave him alone. Therefore, it made the decision to summarily dismiss the Complainant. The Respondent informed the Complainant of her right to appeal.
The Complainant appealed her dismissal by letter dated 31st July 2017, an appeal meeting was held on 9th August 2017. The outcome of the appeal was issued on 21st August 2017, which upheld the decision to dismiss.
Mr Conor O'Gorman, Ibec, on behalf of the Respondent stated that the fact of dismissal was not in dispute. He said that the Complainant's dismissal resulted wholly from her own conduct and submitted that her dismissal was both substantively and procedurally fair. He said that at all times throughout the process, the Respondent acted in accordance with the company union agreed disciplinary procedure, ...
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