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Labour Court Reverses Award Of €37,500 & Deemed Dismissal A Reasonable Response By Employer

Facts: The Complainant joined the Respondent Company in September 2015 as General Ledger Staff Accountant. In or around January 2016, the Complainant became friends with a male colleague, Mr. X. On 29th June 2016, she asked Mr. X about his intentions of dating her, for which he got mad at the Complainant, after which, her daily interactions with Mr. X stopped. In August, he started acknowledging her and she approached him in September asking him if they could be nice to each other. Three days later, he submitted a complaint of sexual harassment against the Complainant. One of the allegations were upheld against the Complainant but rather than going through disciplinary process, the Respondent suggested mediation between Mr. X and the Complainant. Mr. X rejected the offer of mediation and the Complainant filed her counter-grievance against Mr. X. Upon investigation of the Complainant’s grievance, the investigating managers concluded that the Complainant’s grievance was without foundation.

The Complainant raised a further grievance about the two investigations. The Respondent did not appoint further investigators but HR undertook a review of the investigation processes and concluded that her complaint did not constitute a legitimate grievance.

On 12th June 2017, the Complainant wrote an email to Mr. X that she was suicidal and accusing Mr. X of being responsible for her problems. Mr. X complained about this letter alleging bullying and sexual harassment. During the investigation, it was found that the Complainant had sent an email to his friend, Mr. Y on 29th May describing events and how they affected her. The investigators concluded that she had bullied and harassed Mr X and on 25th July 2017 she was summarily dismissed.

The Complainant filed a claim under Unfair Dismissals Act, 1977. The Adjudication Officer decided in favour of the Complainant (ADJ-00012865), and awarded €37,500 to the Complainant as her loss over the two years following her dismissal. The Respondent appealed the Decision of the Adjudication Officer to the Labour Court.

Findings: The Labour Court considered both, the actions of Complainant and the efforts put forth by the Respondent to resolve the issues. The Labour Court noted that while the Respondent exercised a level of leniency with the Complainant by not initiating a formal disciplinary process following the first complaint and suggesting Mediation (which did not proceed), the Respondent warned the Complainant in writing and instructed her specifically to not have any contact with Mr. X. The Labour Court further noted that the Complainant, ‘in somewhat questionable turn of events’ issued an ultimatum to Mr. X that if he did not agree to mediation she would initiate a formal complaint against him, which she then did. However, on investigation, the complaints were found to be without merit. The Respondent made it clear to the Complainant, after the investigation, that the matters between the Complainant and Mr. X were closed and the Complainant was asked to move on.

The Complainant thereafter made complaint to the HR that the previous investigations were flawed and must be reviewed. This review was conducted by the HR and concluded and once again the Complainant was notified that the matter was closed. The Complainant alleged that the persons who conducted the review had given her explicit permission to contact Mr. Y who had been witness of earlier investigations.

The Labour Court noted that as the management team who conducted the review clearly said that the matter was close, there was no ‘explicit permission’ given to the Complainant to contact any one on the matter. The Complainant on her own presumption of permission proceeded to write to Mr. X and Mr. Y, emails containing highly offensive, inappropriate and unacceptable content.

On consideration of the entire set of facts, the Labour Court opined that the decision to dismiss the Complainant ‘was within the range of reasonable responses open to the employer’. The Labour Court held that the emails send to Mr. X and Mr. Y were highly objectionable and a direct contravention of employer’s instructions.

Determination: The Labour Court upheld the Respondent’s appeal and overturned the Adjudication Officer’s Decision.

Takeaway for the Employers: The unreasonable and objectionable actions of an employee can be one of the mitigating factors for the employer to show that the dismissal was fair and the employee may not have a claim of unfair dismissal. However, the employer must have carried out all reasonable investigations in accordance with its policies and procedures. The mere fact that the employee has behaved in an objectionable manner does not give the employer a free pass to not follow fair procedure to determine the outcome. In this case, the employer demonstrated an extreme level of patience with the Complainant, which was complemented by the Labour Court. 

30th March 2020

https://www.workplacerelations.ie/en/cases/2020/march/udd2018.html

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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