UFD Misconduct
Cases
BHS v Burchell
[1980] ICR 303, (1978) IRLR 379
Arnold J
“What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. 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 itself 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 employer had before him, 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.’ and
‘What one there finds, as it seems to us, is the undisputed fact that management did form the belief that Miss Burchell was guilty; that the matters which went into that belief were what had emerged from the examination of the docket signing pattern, what Mrs L had said (though very unspecifically), and Miss Burchell’s denial of the equally unspecific retailing of
that to her; and the matter of the sun-glasses, where she had accepted, according to the evidence as found by the Tribunal, that she knew that Mrs L was getting the goods too cheap. The question which had to be determined by the Tribunal was, as we think, quite simply whether a reasonable management could find from those three matters material for a belief that this young lady had done what she was suspected of doing. It seems to us impossible to answer that question except in the affirmative.
What seems to have happened here, as we read the Decision, is that having, as we have already mentioned, started out by stating the function of the Tribunal with accuracy, they then were in the course of their observations or considerations – perhaps very humanely with some degree of sympathy with the young applicant, not professionally represented, and an anxiety to see that she got a fair crack of the whip – departing from the task which they had set themselves, and that they embarked upon an independent evaluation of the evidence, not for the purpose of seeing whether management could reasonably have drawn the conclusion which management in fact drew, but whether that was by an objective standard a correct and justifiable conclusion. And moreover they were led into examining the matter from the point of the standard of proof which could be derived from the matters which had been stated, which were known to management, in order to see whether the conclusion was justified. There are extensive citations from the well known case of Hornal v Neuberger Products Ltd (1956) in which the Court of Appeal considered in great particularity different standards of proof – or, perhaps more accurately put, whether there was a different standard of proof – in a civil case on the one hand and in a criminal case on the other. That, as we think, had absolutely nothing whatever to do with the proper task of the Tribunal, which had throughout to do that which this Tribunal initially embarked on doing, which was to examine the reasonableness or otherwise of the conclusion reached by management.
They also, it seems to us, became confused along the line between the two somewhat distinct tasks of investigating whether the conclusion of management was a reasonable conclusion on the basis of the material which they had before them and whether, in assembling that material, management had carried out the sort of investigation which a reasonable management could have regarded as sufficient. At the end of the day, no doubt, the two things run close and parallel; but they are distinct.’
W. Devis & Sons Ltd v Atkins
[1977] UKHL 6
Lord Diplock:
“The question in every case is whether the employer acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee and it has to be answered with reference to the circumstances known to the employer at the moment of dismissal.
“If an employer thinks that his accountant may be taking the firm’s money, but has no real grounds for so thinking and dismisses him for this reason, he acts wholly unreasonably and commits the unfair industrial practice of unfair dismissal notwithstanding that it is later proved that the accountant had in fact been guilty of embezzlement. Proof of the embezzlement affects the amount of the compensation, but not the issue of fair or unfair dismissal”.
I will deal later with the question whether such proof would affect the amount of compensation to be paid.
In St. Anne’s Board Mill Co. Ltd. vs. Brien[4] Griffiths J. applied the test formulated by Donaldson J. but thought that the question whether the employer had acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee had to be answered with reference not only to the circumstances known to the employer at the moment of dismissal, but also with reference to circumstances of which he ought reasonably to have known at that time. He held that it was not permissible to take into account circumstances which had come to light after the dismissal, of which the employers neither knew or reasonably ought to have known in deciding whether the employers behaved reasonably at the time of dismissal.
In my opinion it is not the case that an employer can establish that a dismissal was fair by relying on matters of which he did not know at the time but which he ought reasonably to have known. The Schedule does not so provide. If, however, the reasons shown appear to have been a sufficient reason, it cannot, in my opinion, be said that the employer acted reasonably in treating it as such if he only did so in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient.
The decision of the Court of Appeal in Abernethy vs. Mott, Hay and Anderson[5] was on the 1971 Act. Lord Denning M.R. said that the reason shown for the dismissal “must be a reason in existence at the time when he is given notice. It must be the principal reason which operated “on the employer’s mind.” He went on to say that it must be made known to the man before he is given notice or told to him at the time. I do not see anything in the Act which makes it a condition of fair dismissal that the man dismissed must know before he is given notice or told at the time that he is given notice the reason for it. I prefer the view of Cairns L.J. who said,
“A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, that is no doubt evidence, at any rate as against him, as to the real reason, but it does not necessarily constitute the real reason. He may knowingly give a reason different from the real reason out of kindness…”
In Merseyside and North Wales Electricity Board vs. Taylor[6] O’Connor J. held that the tribunal had erred in considering matters which had occurred subsequent to the dismissal. He said that those matters could not be relevant in considering whether the employer acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee.
In Da Costa vs. Optolis[7], however, Phillips J. held that evidence of irregularities unknown to the employers at the time of the dismissal was admissible on the issue whether or not the dismissal was fair. I do not think that this was right, for those irregularities had no bearing on the dismissal and could not affect the question whether the employers had acted reasonably in thinking that the reasons they had then were a sufficient ground for dismissal.
These observations in these cases which I have cited except those of Phillips J. in the last mentioned case all support the conclusion to which I have come on consideration of the statutory provisions. It follows that the tribunal, Phillips J. and the Court of Appeal in the present case were in my opinion right in deciding that the evidence of misconduct discovered since the dismissal was irrelevant and inadmissible on the issue whether the employers had acted reasonably in treating the reason for which they had dismissed the respondent as a sufficient reason for doing so. For that misconduct, if it occurred, cannot have influenced the employers’ action then.
If it were the case the consequence of so holding, that an employee guilty of grave misconduct successfully concealed up to the moment of his dismissal was under the Schedule entitled to substantial compensation, that would indeed be a powerful reason for seeking to give paragraph 6(8) a different construction. In Attorney-General vs. Prince Ernest Augustus of Hanover[8] it was said that it was wrong to consider one section of an Act in isolation and I must therefore consider the question whether that construction of paragraph 6(8) has that consequence in the light of the other provisions of the Schedule.
Before doing so, however, I should point out that it is not clear from the decision of the tribunal whether they would have held the dismissal unfair if it had not been for the failure to give the respondent at any time before his dismissal a clear warning that his employment was in jeopardy. They clearly attached importance to that. Paragraph 133 of the Code of Procedure approved by Parliament in 1972 stated among other things that normally there should be an oral warning or in the case of more serious misconduct a written warning setting out the circumstances, and paragraph 3 of the Schedule entitles the tribunal to take into account that paragraph of the Code when deciding whether a dismissal was or was not fair.
It does not follow that non-compliance with the Code necessarily renders a dismissal unfair, but I agree with the view expressed by Donaldson J. in Earl vs. Slater and Wheeler (Airlyne) Ltd.[9] that a failure to follow a procedure prescribed in the Code may lead to the conclusion that a dismissal was unfair, which, if that procedure had been followed, would have been held to have been fair.
Section 106(5) of the 1971 Act and paragraph 17(3) of the first Schedule to the 1974 Act both say that if the dismissal is held to be unfair and the tribunal does not recommend re-engagement or its recommendation as to re-engagement is not complied with the tribunal “shall” make an award of compensation. Despite this provision, in Earl vs. Slater and Wheeler (Airlyne) Ltd. the tribunal held that the unfairness of the dismissal due to the employers’ failure to give their employee an opportunity of dealing with the allegations against him had caused the employee no loss. Donaldson J. expressed the opinion that there was under the 1971 Act no room for an award of nominal compensation and that as the tribunal had found the employee had suffered “no conceivable injustice”, they must have assessed the compensation as nil. The court held that the claim for compensation was rightly dismissed and so dismissed the appeal.
…….Phillips J. thought there was an inconsistency in finding a dismissal unfair and then not awarding compensation. He said the tribunals would be wise before so holding, to consider whether to do so involved a basic inconsistency. He referred to Kemp vs. Shipton Automation Ltd.[15], where the opinion was expressed that to award less than 20 per cent (i.e., a contribution of more than 80 per cent) was likely to be seen as verging on the inconsistency and that an employment appeal tribunal would feel free to vary the tribunal’s award:
“if it is satisfied that it is based on a wrong principle, e.g. is inconsistent with the finding of unfair dismissal”.
In Courtney vs. Babcock & Wilcox (Operations) Ltd.[16] Lord Macdonald said that they would wish to reserve the position in Scotland as to the suggestion that the apportioned award of compensation should not be less than 20 per cent. “This”, he said, “savours of a tariff and is contrary to the broad jury approach normally adopted in Scotland in matters of this nature.”
Phillips J’s. observations as to the alleged inconsistency were related it would apear only to paragraph 19(3), but a man may bring about his dismissal wholly by his own misconduct and yet as I have indicated that dismissal may be unfair through failure to warn him that his employment was in jeopardy. In such a case, and there may be others, there is no inconsistency and in such a case, whether it is considered under paragraph 19(1) or 19(3), the just and equitable award might be one of nil compensation. I can see no justification for the assertion that an award of compensation should be less than 20 per cent.
Having considered these authorities and the statutory provisions it is in my opinion clear that in assessing compensation the tribunal is entitled to have regard to subsequently discovered misconduct and, if they think fit, to award nominal or nil compensation.
It is not therefore necessary to strain the language of paragraph 6(8) so as to avoid a result which Parliament cannot possibly have intended, namely, that a dishonest employee who has cheated his employers and has successfully concealed his defalcations up to the time of his dismissal, whose conduct, if known, would justify his summary dismissal, should in addition to the proceeds of his dishonesty, obtain “compensation” from his employers.
There are two matters which I wish to add. The first is that it must not be inferred that the respondent was guilty of any misconduct. The allegations as to that remain to be proved. The second is that the respondent who was not represented before this House, lost nothing thereby. Mr. Peter Scott appeared as amicus curiae and made every point which could be made in favour of the respondent clearly and concisely and I would like to express my thanks to him for his helpful and cogent argument.
In my opinion the tribunal was right to refuse to hear the evidence of misconduct when they did and I would dismiss the appeal.
Procter v British Gypsum Ltd
[1991] UKEAT 535_89_2407
MR JUSTICE WOOD
By an Originating Application dated 9th December 1988 Mr Procter alleged that he had been unfairly dismissed by his employers, British Gypsum Ltd, on the basis that the decision to dismiss was inconsistent with previous similar incidents.
There are three cases to which we were referred and which are the three principal cases relevant to this issue. The first is THE POST OFFICE v. FENNELL [1981] IRLR 221. This case establishes that it is open to an Industrial Tribunal to classify as unfair a dismissal which demonstrates inconsistency on the part of the employer even though in any every respect the employer’s actions have been reasonable. It also stresses as indicated in the judgment of Lord Justice Brandon that it was for the Industrial Tribunal to say what weight they attach to the evidence and that inconsistency was essentially a question of fact for the Industrial Tribunal.
The second case is HADJIOANNOU v. CORAL CASINOS LTD [1981] IRLR 352. The facts of that case are not particularly material but its importance is in the guidance given by this Court presided over by Mr Justice Waterhouse in paragraphs 24, 25 and 26 –
“24 In resisting the appeal, counsel for the respondents, Mr Tabachnik, has submitted that an argument by a dismissed employee based upon disparity can only be relevant in limited circumstances. He suggests that, in broad terms, there are only three sets of circumstances in which such an argument may be relevant to a decision by an Industrial Tribunal under s.57 of the Act of 1978. Firstly, it may be relevant if there is evidence that certain categories of conduct will be either overlooked, or at least will be not dealt with by the sanction of dismissal. Secondly, there may be cases in which evidence about decisions made in relation to other cases supports an inference that the purported reason stated by the employers is not the real or genuine reason for a dismissal. Mr Tabachnik illustrates that situation by the argument advanced in the present case on behalf of the appellant, that the general manager was determined to get rid of him and merely used the evidence about the incidents with customers as an occasion or excuse for dismissing him. If that had been the case, the Industrial Tribunal would have reached a different conclusion on the appellant’s complaint but they considered the submissions about it and rejected them. Thirdly, Mr Tabachnik concedes that evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case, that it was not reasonable on the part of the employer to visit the employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.
25. We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that Industrial Tribunals would be wise to scrutinize arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a Tribunal may be led away from a proper consideration of the issues raised by s.57(3) of the Act of 1978. The emphasis in that section is upon the particular circumstances of the individual employee’s case. It would be most regrettable if Tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or Tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation.
26. At the end of the argument we have not been persuaded that the evidence in this case established any inconsistency of treatment by the respondents of employees in relation to breaches of the socializing rule. It was open to the Industrial Tribunal to take the view that inconsistency had not been established and this part of the appeal is based on an issue of fact rather than one involving a question of law. For that reason we are unable to uphold the appeal on the ground of disparity.”
Finally we would refer to the recent decision in this Court of CAIN v. LEEDS WESTERN HEALTH AUTHORITY [1990] ICR 585 (Sir David Croom-Johnson, T S Batho and R J Lewis) Mr Batho is a member of the present Court. In that case Mr Cain was a hospital laundry worker and was summarily dismissed by the Health Authority on the ground of gross misconduct for fighting with a fellow employee. He complained to an Industrial Tribunal of unfair dismissal. The Tribunal considered the cases of two other employees which had not resulted in dismissal for gross misconduct put forward as comparable, but rejected consideration of those two further cases on the ground that they had occurred seven years earlier at different hospitals. The reason for rejecting those comparables was that the other cases had been dealt with by different personnel on behalf of the Authority and could not necessarily be said to be therefore comparable with the present case in assessing inconsistency. This Court held that an employer must act consistently between all employees and it was no answer that the decision in the other cases had been taken by different servants or agents of the employer. This was held to amount to material misdirection.
As in so many aspects of industrial relations a reasoned and reasonable balance must be sought. This is emphasised in HAJIOANNOU. Before reaching a decision to dismiss an employer should consider truly comparable cases of which he knew or ought reasonably to have known. The information may be forthcoming at the initial stage or on appeal. If the employee or those representing him know of other such incidents it will no doubt be in his best interests that they should be identified or at least drawn to the attention of the employer. If necessary an adjournment can be taken for further investigation. A small concern may not keep any records of dismissal; a large employer may do so as a matter of sound administration. We do not suggest any obligation so to do. Unless the personnel manager has been in post for a substantial period it may be reasonable to make enquiry of others, as did Mr Scott in the present case.
Industrial situations within a unit or on a site may change from time to time as may physical conditions. There may be an increase in dishonesty, fighting or absenteeism. Thus, it may not be reasonable to look back more than a few years.
These may be some but by no means all the factors which may be relevant to the approach of this employer in these circumstances. The question will always be one of fairness.
Whatever the relevant factors, the overriding principles must be that each case must be considered on its own facts and with freedom to consider mitigating aspects. The dangers of a tariff and of untrue comparability are only too obvious. Not every case of leniency should be considered to be a deviation from declared policy.
For the reasons we have given this appeal is dismissed.
Procedure / Misconduct
Mooney v. An Post
[1998] 4 I.R. 288
Barrington J.
“Two passages which appear in the judgments in Gunn v. NCAD [1990] 2 I.R. 168, have caused difficulties to trial judges in that they cast doubt on the relevance to Irish law of the speech of Reid L.J. in Ridge v. Baldwin [1964] A.C. 40 and on the reasoning of Kenny J. in Glover v. B.L.N. Ltd. [1973] I.R. 388.
The first is a passage which appears in the judgment of Walsh J. (at p. 181) reads as follows:-
“There is one other matter I wish to refer to, to clear up what appears to be misapprehension concerning the application of the rules of natural justice or of constitutional justice. The application of these rules does not depend upon whether the person concerned is an office holder as distinct from being an employee of some other kind. I mention this because it is a subject which is referred to in the course of the judgment of the learned judge of the High Court in his reference to Glover v. B.L.N. Ltd. [1973] I.R. 388. The quality of justice does not depend on such distinctions.”
The second is that of McCarthy J. which appears at p. 183 and reads as follows:-
“I share the view of Walsh J. that, in the absence of any particular prescribed procedure, the principles of natural justice or constitutional justice would govern the relationship between the plaintiff and An Bord. These principles are not the monopoly of any particular class.”
The third member of the court, Griffin J. agreed with both of these judgments.
It has been said that, because the Supreme Court held that the plaintiff in that case was in fact an office holder that the passages quoted were in fact obiter. But the purpose of the passages was to emphasise that the difference between employee and office holder was not the determining issue as to whether the principles of natural and constitutional justice applied. Certainly the court appears to have gone out of its way to emphasise this point. It appears to me that what the court was saying is that society is not divided into two classes one of whom – office holders – is entitled to the protection of the principles of natural and constitutional justice and the other of whom – employees – is not. Dismissal from one’s employment for alleged misconduct with possible loss of pension rights and damage to one’s good name, may, in modern society, be disastrous for any citizen. These are circumstances in which any citizen, however humble, may be entitled to the protection of natural and constitutional justice.
The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case. Indeed two of the best known precepts of natural and constitutional justice may not be applicable at all in certain cases. As the learned trial judge has pointed out the principle of nemo judex in sua causa seldom applies in relation to a contract of employment where the employer judges the issue and is an interested party. Likewise it is difficult to apply, to a contract of employment, the principle ofaudi alteram partem which implies the existence of an independent judge who listens first to one side and then to the other.
If the contract or the statute governing a person’s employment contains a procedure whereby the employment may be terminated, it usually will be sufficient for the employer to show that he has complied with this procedure. If the contract or the statute contains a provision whereby an employee is entitled to a hearing before an independent board or arbitrator before he can be dismissed then clearly that independent board or arbitrator must conduct the relevant proceedings with due respect to the principles of natural and constitutional justice. If however the contract (or the statute) provides that the employee may be dismissed for misconduct without specifying any procedure to be followed, the position may be more difficult.
Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.
It is significant that in Gunn v. NCAD [1990] 2 I.R. 168, Walsh J. dealing with the submission that the dismissal of the plaintiff was effected by means of a procedure which violated the plaintiff’s rights to fair procedures stated at p. 179:-
“With regard to the submissions the first thing to be observed is that the statute itself provided no procedures for dismissals, and therefore no question of any departure from any procedure laid down by statute arises. If no other procedure were provided then the matter would have to be judged in the light of the circumstances which attended the dismissal, and it is quite clear that persons cannot be dismissed from what is in effect public office by a procedure which did not inform them of the grounds of their dismissal or afford them an adequate opportunity to rebut, or attempt to rebut, any accusations of misconduct which would justify a dismissal.”
This passage re-echoes a passage from the judgment of Walsh J. in Glover v. B.L.N. Ltd. [1973] I.R. 388 at p. 425, where he said:-
“The plaintiff was neither told of the charges against him nor was he given any opportunity of dealing with them before the board of directors arrived at its decision to dismiss him. In my view this procedure was a breach of the implied term of the contract that the procedure should be fair, as it cannot be disputed, in the light of so much authority on the point, that failure to allow a person to meet the charges against him and to afford him an adequate opportunity of answering them is a violation of an obligation to proceed fairly.”
In the present case the plaintiff was employed by the defendant on the same terms as those on which he had formerly been employed by the Government. Formerly he held office at the will of the Government and could have been dismissed by the Government. If however he were to be dismissed for misconduct he would have been entitled to know what the charges against him were and to have had an opportunity to answer those charges. On the other hand, he would never have been entitled to a hearing by the Government nor could he complain if the Government had acted, as no doubt it would have acted, not only on the evidence in the case but also on the report of one of its inspectors. He would not, normally, have been entitled to see the report of the Government’s investigating officer and neither is he, in the circumstances of the present case, entitled to a hearing before the board of the defendant or to see the report of the investigation officer. On the other hand, it is clear from the findings of the trial judge that he has received the benefits of the fair procedures referred to in the passages quoted above from the judgments of Walsh J.
The matter however does not rest there. The plaintiff claims that he is entitled to the benefit of an oral hearing before an independent arbitrator and to cross-examine, by counsel, those prepared to give evidence against him. This claim calls for a closer examination of the nature of the plaintiff’s employment and of the circumstances surrounding his dismissal.
The plaintiff was a postman which is a position of trust. The defendant received complaints which caused it to have misgivings about the integrity of the postal service and about the conduct of the plaintiff. It appears to me that the defendant was entitled to expect a candid response from the plaintiff when they put these misgivings to him and that it was not sufficient for the plaintiff simply to deny responsibility and to say that he could not “remember back to yesterday week”.
On the 4th April, 1984, the plaintiff made a statement to the gardai in the following form:-
“I have been cautioned that I am not obliged to make a statement or to answer any question and that anything I do say would be taken down in writing and may be given in evidence. I understand that. I have given Detective Sergeant McLoughlin permission to carry out a search of my house and that’s the only statement I want to make.”
It was of course the plaintiff’s right to remain silent while the criminal proceedings were hanging over him. But the plaintiff was acquitted on the 18th December, 1985, and from then until the date of his dismissal on the 4th March, 1987, the plaintiff made no further statement concerning the matters alleged against him. The plaintiff raised no issue of fact which needed to be referred to a civil tribunal. It is important to emphasise that the dismissal proceedings were not criminal proceedings and it was not sufficient for a person in the position of the plaintiff simply to fold his arms and say:-
“I’m not guilty. You prove it.”
To attempt to introduce the procedures of a criminal trial into an essentially civil proceeding serves only to create confusion.
It is necessary also to consider the position of the defendant. It was not in a position to set up an independent tribunal with power to subpoena witnesses even had it wished to do so. At the same time it had received serious complaints from members of the public touching the integrity of the postal services. The defendant could not responsibly ignore these complaints even though the members of the public did not wish to become involved before any court or tribunal. Under these circumstances it appears to me that the defendant was entitled to receive a proper explanation from the plaintiff and that they did not receive it.”
Louie Dunphy -v- HSG Zander Services Ltd.
(UD2361/2010, RP 3169/2010, MN2303/2010), EAT
Background
The employee was an electrician and went out sick in 2009. the Employer dismissed the employee for driving a taxi whilst off sick. The Employee however argues that he was permitted to drive a taxi outside of working hours and as such this was not a case of Gross Misconduct.
The employee received a final written warning in August 2005 for driving a taxi during working hours, and an agreement was presented to the employee on this matter but was never signed by the employee.
“when the nature of an employee working whilst certified unfit to work arises, an onus is placed on the employee to clearly and satisfactorily explain and justify this, and in doing so seek to establish that his action has not undermined or damaged the relationship of trust that is inherent between an employer and employee.”
The Tribunal found Mr Dunphy had failed to discharge this onus and had not satisfactorily addressed the breakdown in the relationship of trust that had taken place as a result of his actions. The Tribunal stated that “this breakdown was of such consequence as to sunder the relationship between the parties.” The employee was guilty of gross misconduct.
Bolger v Showerings (Ireland) Limited
[1990 ELR 184]
The ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that:
“(1) It was the ill-health which was the reason for the dismissal;
(2) That this was the substantial reason.
(3) That the employee received fair notice that the question of his
dismissal for incapacity was being considered; and
(4) That the employee was afforded an opportunity of being heard.”
N v Dunnes Stores (Mullingar) Ltd1988
EAT
The claimant was convicted of assaulting a garda and being drunk in public. She had not informed her employer of the impending court case and had sought a day’s holiday to attend at court.
“We do not think that the offences were sufficiently serious to warrant her dismissal. It was argued .. that the publicity in the local papers in relation to one of its employees would adversely affect the image and therefore the trade of the company. We are not convinced of that argument. While the publicity might not have done the company any good, we cannot see that it did any harm. Accordingly we find that the dismissal was unfair in all the circumstances.”
M v Dunnes Stores (Enniscorthy) Ltd
(UD 571/1988)
EAT
The claimant was dismissed having being convicted of breaking, entering and theft.
“It is of great significance that the claimant was working for a retail store. Trust is an essential ingredient of any employee/employer relationship. In a retail store it is of paramount importance. The claimant’s involvement in the burglary of a neighbouring premises breached that bond of trust. Following the burglary, the employer was entitled to review his attitude to the claimant and, if, in his judgement he could no longer repose any trust in the claimant, he would be entitled to dismiss.”
JS v GG Ireland Limited
UD1195/2012
EAT
“A preliminary investigation was undertaken by SC, branch manager at the date of the incident which led to the claimant’s dismissal. The investigation was confined to how the out of date product had been supplied to the customer and she had no role in making a recommendation in relation to the disciplinary process. However, the investigation concluded that the disciplinary procedure should be invoked on the grounds that the claimant had failed to comply with “in house” policies in relation to monitoring out of date stock.
On the 8 May 2012, the claimant attended a disciplinary hearing conducted by XX, production and purchasing manager. Prior to the hearing date, the claimant was notified by letter dated the 2 May 2012, that following a full investigation, four allegations against him would be included on the agenda as follows;
Failure to comply with standard operating procedures in the store area
Failure to implement appropriate processes to monitor stock rotation
Very serious breach of food safety standards
Failure to effectively supervise the stores with significant potential risk to public safety as well as to create serious damage to customer relations with the airline affected.
The Tribunal is of the view that the appointment of XX to conduct the disciplinary hearing in relation to the four allegations against the claimant was unfair and contrary to the principles of natural justice given that XX had a day to day operational function within the respondent company and ultimate responsibility for the stock and stores department. Furthermore, EK headed an investigation into the current stock control procedures, the results of which formed the basis of the allegations against the claimant and in the absence of any evidence to the contrary, it appears that XX made the decision to dismiss.
Having heard the evidence of all the witnesses, together with the submissions of the parties representatives, the Tribunal is of the view that there was a failure of the standard operations procedures in relation to stock control. The Tribunal finds that it was unfair and unreasonable to conclude that the claimant was solely and exclusively responsible for such failure. Termination of employment on the grounds of gross misconduct was a disproportionate sanction in all the circumstances, particularly but not exclusively taking into account that the claimant was employed by the company for a period of nineteen years with an unblemished record and the claimant received no formal verbal or written warning in the time preceding the incident and other personnel investigated received only final written warnings following the conclusion of the investigative process.
The Tribunal determines that the claimant was unfairly dismissed and awards compensation in the amount of €45,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal further awards the claimant €5,899.84 in lieu of eight weeks minimum notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
M v KLS
UD828/2013
Determination:
The appellant was dismissed from his employment ….having exhausted the disciplinary process. On ……the appellant was spotted on CCTV acting suspiciously. Following an investigation on the day the respondent discovered that two jam tarts were missing from a packet in a box situated in a cage in lane 52. On both occasions when the appellant was observed at a cage in lane 52 he had no reason to be there. The appellant stated that he was not eating a jam tart, he was eating a chocolate bar that he had purchased from the vending machine. The second time he was observed at the cage he said he was watching something on a mobile phone. The CCTV footage does not lend itself to that version of events.
Based on the following facts:
– Stock at lane 52 was tampered with
– The appellant had no authority to be at a cage in lane 52 when he was there.
– The appellant is clearly eating something when moving from the cage.
– His body movements are inconsistent with his version of events.
The Tribunal finds that the appellant’s evidence was not credible and on the balance of probability finds that he did in fact tamper with the stock.
The Tribunal finds that there were no procedural defects which would render the dismissal unfair. The investigation, disciplinary meetings and appeal were thorough, fair and objective.
The Tribunal must assess where or not the sanction imposed was proportionate. The respondent stated that its function is to accept deliveries, process them and dispatch it to a third party stores. The third party is their only client and they are totally reliant on them for their business. There is a high level of trust between the respondent and the third party and that must be maintained at all times. If they tolerated staff tampering with stock the working relationship between them and the third party could be irretrievably damaged. That is why there is a zero tolerance policy. The respondent has placed vending machines on the shop floor to prevent staff tampering and/or eating stock. The Tribunal accepts that the respondent’s zero tolerance policy is reasonable in the circumstances. Any dismissal arising out of a breach of the policy is fair and proportionate.”
P v Dunnes Stores
UD517/2012
Respondent’s Case
The respondent is a large supermarket chain. The claimant worked as a department manager for the respondent having commenced employment in July 2002. The Store Manager (PT) of the respondent supermarket concerned gave evidence.
The supermarket allows various community groups and charities to carry out a ‘bag-pack’ to raise funds. The procedure is that the group write to the respondent requesting a bag-pack, the claimant puts all the request letters in a diary and is then in charge of scheduling the bag-packs limiting them to two a month.
PT, the store manager received a letter of complaint from a local community group. The complaint was that the claimant had opened an account in their name at a cash and carry. The community group’s letterhead was used to validate the association with the group to open the account. The wife of one of the community group leaders works for the respondent and the wife of another community group leader works for the cash and carry; hence the discovery and subsequent complaint.
As a result of this complaint PT held a meeting with the claimant on the 11th of February 2012. The claimant admitted taking the community group’s letter requesting a bag pack and doctoring it for the purposes of opening an account with the cash and carry. By way of explanation the claimant said she was in financial difficulty and was earning extra money from selling the cash and carry goods. The meeting was adjourned.
Later that day the meeting reconvened as a disciplinary meeting. The claimant was offered and declined representation. The claimant again admitted using the letter to open an account but denied selling the goods to respondent staff. The claimant then admitted to selling the goods purchased on a different cash and carry account to staff in the respondent. The claimant was suspended until the 13th of February and warned that the outcome of the disciplinary process could be dismissal.
At the disciplinary meeting on the 13th of February PT outlined the allegations as follows;
‘1.Misrepresestation of the company
2. Forgery
3. Fraud’
The claimant again explained her very difficult personal circumstances that led to her actions. PT had been aware of her difficult circumstances prior to this incident. The meeting was adjourned for PT to consider. PT sought advice from the HR department during the disciplinary process. As per the respondent’s disciplinary procedures, the claimant was dismissed for, ‘conduct, including social conduct unbecoming of an employee of the company or contrary to its best interest or which could bring the company reputation into disrepute.’
PT had “thought long and hard about it over the weekend”, so delivered his decision to dismiss the claimant when the meeting reconvened after a 15 minute break. The claimant was dismissed for gross misconduct; ‘as far as I & the company are concerned the bond of trust has been irrevocably broken’. PT outlined the appeal process to the claimant. The letter of dismissal was issued to the claimant on the same day. The claimant was a department manager and in a position of trust; no other sanction would be appropriate given the serious nature of the offence. PT did take the claimant’s long service, clean disciplinary record and family problems into consideration before making his decision.
Determination
Having carefully considered the evidence adduced, the Tribunal are of the view that as this was the claimant’s first offence, committed in a time of great personal difficulty which the respondent was aware of, the sanction of dismissal was disproportionate.
The Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards the claimant €14,000.00 in compensation.
The claimant is also awarded € 2,630.76 being the equivalent to 4 weeks’ notice under the Minimum Notice and Terms of Employment Acts 1973 to 2005.
Appeal of Employee
UD2196/2011
EAT
“The determination of the Tribunal was as follows:
There was no contest as to the central facts of the case. The appellant was employed on the public transport service provided by the respondent. A member of the public was seen on CCTV annoying other passengers and she went to deal with the problem. The other party reacted to her offensively, including racial abuse, and then spat at her as the appellant was walking away. She then turned around and spat back at him. This brief interchange was recorded on CCTV, and footage was played at the Tribunal hearing.
The appellant at all stages admitted she was at fault during the disciplinary process, and she was dismissed for what was described as “gross misconduct.”
Counsel for the appellant argued that dismissal was too severe in the circumstances, given the provocation involved and her excellent prior record in employment. Counsel also made some procedural points, which the Tribunal did not consider significant.
On behalf of the respondent it was argued that dismissal fell within the range of reasonable actions and relied on case law to this effect.
Section 6 (1) of the act provides that
“the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”
The adjective “substantial” means that the ground relied upon should be a matter of substance rather than form, and should be a matter of gravity. In weighing the gravity of the matter against the penalty of dismissal the Tribunal must have “regard to all the circumstances” as the subsection requires. In other words the Tribunal should decide whether the penalty of dismissal is proportionate to the offence. The doctrine of proportionality is now well established in Irish law since Cox v Ireland (1992 2 I.R. 503) and Heaney v Ireland (1994 3 I.R. 593) and elaborated in other cases since then.
Having viewed the video of the event, the Tribunal is of the view that the conduct of the appellant was such as to bring the company into disrepute and would justify a penalty of some sort, but “having regard to all the circumstances” especially the severe provocation would not amount to “gross” misconduct as the respondent argued. Subsection 6 (1) does not use the adjective “gross” or even the word “misconduct” but only the more neutral word “conduct.” As already stated her conduct did merit some penalty, but the penalty should be proportionate. When we add in the element of provocation, and also have regard to her previous excellent record, we are of the view that dismissal was disproportionate.
The Tribunal therefore finds that the dismissal was unfair under Section 6 of the Act.
The Tribunal also determines that the appellant’s conduct did contribute to her own dismissal under Section 7 of the Act as amended, and this is a matter to which we must have regard in considering redress. The appellant was seeking reinstatement, but this form of redress, which is rare enough in practice, would involve no penalty at all. While we are disposed to some form of re-employment, we are also of the view that re-engagement allows the Tribunal a wide discretion to meet the circumstances of the case.
The Tribunal determines that the appellant be re-engaged back into the position she held with the respondent on 1 December 2010. This re-engagement is to take effect from 1 January 2012. Her remuneration is to recommence from that date. However, the appellant is not permitted to avail of leave entitlements until she actually returns to work. The period from 1 December 2010 to 1 January 2012 is to be treated as continuous service for other purposes other than remuneration and leave entitlements.
Employer v Employer
UD1763/ 2011
The respondent company traded as a fast food store known as Abrakebabra and the claimant was employed as a supervisor in the store from 2006. (F) for the respondent company gave evidence that the claimant was given a number of verbal warnings and in April 2010 received a final written warning for breaches of company rules. In April 2011 (F) viewed CCTV footage showing the claimant consuming food on the premises without any record of the food being purchased. On checking further CCTV footage he discovered two or three similar instances. He called the claimant to a meeting in or around 24 February 2011 and showed the CCTV footage to him. The claimant told him that he had forgot to pay for the food and attempted to pay for it on the following day. (F) told the Tribunal that this was not acceptable and his trust in the claimant had been betrayed. He gave him one month’s notice and dismissed the claimant with effect from 25 March 2011.
He did not write to the claimant confirming his dismissal and did not offer the claimant an opportunity to appeal the dismissal. His word was final. He gave further evidence that he sold the business approximately three months later and existing staff were paid their redundancy and notice entitlements.
The claimant gave evidence that he worked for the respondent since March 2006. He worked 5/6 days per week and his shifts varied from 4 to 10 hours. He told the Tribunal that for the first four years of his employment staff were permitted to have a meal and beverage on the premises free of charge. This position changed in 2010 and staff were required to record their consumption on a record sheet and pay for it thereafter. He was called to meeting by (F) in or around 13 March 2011. He was not informed beforehand of the nature of this meeting. He was dismissed at the meeting for failure to pay for food that he had consumed. He told the Tribunal that he had recorded his food consumption on the record sheet in the usual manner and paid for it on the following day. He did not tell (F) that he had forgot to pay for the food and denied that he was shown CCTV footage of the incident. He confirmed that he had received a previous written warning in 2010 but denied that he had received any verbal warnings. He was dismissed from his employment with effect from 25 March 2011. He is currently unemployed and is seeking alternative employment.
Determination
The Tribunal, after the evidence of both parties finds that there was a direct conflict of evidence between the parties and very little documentary evidence was provided to the Tribunal. Based on the lack of proper procedures adopted by the respondent in terminating the claimant’s empl oyment the Tribunal finds that the claimant was unfairly dismissed. For instance no formal invitation to what amounted to a dismissal meeting was sent to the claimant, no investigation took place and no letter of dismissal issued to the claimant. The Tribunal also notes that no possibility of an appeal was offered to the claimant. In those circumstances the Tribunal finds that the dismissal amounted to an unfair dismissal within the meaning of the Unfair Dismissals Acts and awards compensation in the sum of €9,500.00 under the said Acts.”
Bank of Ireland -v- R
[2015] IEHC 241
Noonan J.
Introduction
1. In these proceedings, the defendant (“Mr. R”) alleges that he was unfairly dismissed by the plaintiff (“the bank”) from his employment and has brought a claim pursuant to the Unfair Dismissals Act 1977 (as amended) (“the Act”). The claim originally came before the Employment Appeals Tribunal (“the EAT”), where it was seven days at hearing over a period of about a year. An appeal was brought from the decision of the EAT to the Circuit Court, which took eight days and in turn, the order of the Circuit Court was appealed to this court when the matter was at hearing for ten days. This is without taking account of an initial investigation, a two stage disciplinary process and two internal appeals.
2. By my reckoning, Mr. R has given oral evidence on some eight occasions over a six year period in relation to this matter. Enormous costs have been incurred that Mr. R at least can ill afford. This must be viewed as oppressive to say the least and calls into question the State’s obligations under Article 6 of the European Convention on Human Rights regarding the right to a fair and expeditious trial. Not for the first time has this court been critical of this unacceptable situation – see the remarks of Charleton J. in JVC Europe Limited v Panisi [2011] IEHC 299. Although as a matter of law an appeal lies from the Circuit Court to the High Court under the Act of 1977, a general reading of the Act appears to suggest an underlying assumption that the Circuit Court should be the final tribunal of appeal. It appears to me that it is well past time that this issue was addressed.
The Employment Documents
24. It was common case that Mr. R was bound by his contract of employment to observance of the bank’s group code of conduct and in particular of a document entitled “Group Information Security Email Usage”, dated the 12th of February, 2008. This document provided (at p. 2):
“Group email systems are provided for in the conduct of group business…
• In email communications, users must not engage in any activity, which is illegal, offensive, disruptive or likely to have negative repercussions for the Group…
The Group reserves the right to monitor and give reasonable grounds for investigation, intercept, access and disclose messages created, received, stored or sent over the group email systems at any time without notice. You agree that the Group may undertake such monitoring and may use such methods and equipment as it considers necessary or appropriate.”
25. The document continues (at p. 5):
“Your usage of the Group email systems should not involve you in any activity that is illegal, offensive or likely to have negative repercussions for the group. Particularly, you must not use, retain, distribute or disseminate any images, text, materials or software that:
• Are or might be considered to be indecent or obscene.
• Are or might be offensive or abusive in that their content is or can be considered to be a personal attack, rude, sexist, racist, pornographic or generally distasteful…
• Adversely impact on the image of the Group.”
26. Finally (at p. 7):
“9: Policy violation.
If you fail to comply with the requirements of this policy, and/or otherwise misuse and/or abuse the Group email systems, you may be liable to disciplinary action up to and including dismissal. The Group will treat any breach of this policy in a serious manner. At the same time, your conduct and/or actions may be illegal and you may be personally liable for the consequences.”
27. The bank also relied on a further document entitled “Disciplinary Procedures” which included the following provision:
“Gross misconduct.
In cases of gross misconduct, an employee may be dismissed without recourse to the earlier steps in the disciplinary procedures. In a situation which may be potentially deemed as gross misconduct, a full investigation will be carried out. An employee may be placed on special paid leave during such an investigation.
Full investigation and careful consideration of the facts will be carried out without undue delay and this may include consultation with any witnesses and the preparation of written statements as appropriate. If the employee’s manager is a witness or the only witness to an alleged case of misconduct, that manager will not conduct the investigation or play a part in the disciplinary decision making process.
If an employee has been found to have committed gross misconduct, there may be mitigating factors which mean that a less serious sanction than dismissal is appropriate. Mitigating factors will be considered bearing in mind the principles of fairness and consistency which underline these disciplinary procedures.
Among the matters which may be described as gross misconduct which may be a cause for dismissal are:-…
4. Breach of Group code of conduct or policies (e.g. group email policy, harassment and bullying policy, etc.).”
28. Although not a contractual document, the bank also placed reliance on a notice by the IBOA, dated the 14th of November, 2006 and addressed to all IBOA members in the Bank of Ireland group. This stated the following:
“Re: use of internet/email and company mobile phones.
Members should be aware that there has been a significant increase in the number of staff being disciplined by the bank for breaches of its email/mobile phone policy. The disciplinary sanctions imposed on staff range from written warnings up to dismissal depending on the severity of the incident.
Members should be aware that the company email and mobile phones are for work related use and should not be used to send material which is not work related.
IBOA are instructing members to familiarise themselves with the bank’s internet/email policy and to ensure that their use of the bank’scomputers/mobile phones comply with this policy.”
38. It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.
39. I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4):
“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:
‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’
It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”
The Decision to Suspend Mr. R
40. The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 IR 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. In Mr. R’s case, his evidence was that rumours and reports circulated about him ranging from possibly being involved in fraud to participation in a tiger kidnapping.
41. Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process. Indeed, this is explicitly recognised by the bank’s own disciplinary procedures in force at the relevant time. The procedures provide, under the heading “Special Paid Leave”, as follows:
“An employee may be placed on special paid leave in order to facilitate the proper conduct of the disciplinary procedures.”
42. The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters.
43. In the present case, the circumstances surrounding the decision to suspend Mr. R are far from clear. As previously noted, three staff members including Mr. R were suspended and two were not, where all five were being investigated for breach of the bank’s email policy.
49. Like Mr. Mahon, I can perceive no logic in the course adopted by Mr. Mk. No evidence has been adduced by the bank as to why it was necessary to suspend Mr. R, less still justify the manner in which it was done. After an exemplary career in the bank, Mr. R was summoned at a moment’s notice by the manager to be told he was being suspended. Mr. Donnelly gave him virtually no information as to the reason other than saying he was acting on the instructions of Head Office and it was something to do with emails and without being afforded even the most basic opportunity to offer an explanation or defend himself, he was marched out the door never to return. Indeed, even if Mr. R had a valid explanation, there was little point in him proffering it to Mr. Donnelly, who had been presented with a fait accompli by Head Office. I cannot accept the proposition advanced by counsel for the bank that Mr. R had no entitlement to natural justice or fair procedures in any shape or form at this stage of the proceedings. Whilst of course it must be correct to say that the full panoply of fair procedures may not have been engaged at that stage, I cannot accept that basic fairness did not require at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response.
50. In the light of the foregoing, I cannot conceive how Mr. Mk could have independently arrived at the decision to suspend Mr. R and two others whilst not suspending a further two staff members accused of the same misconduct. It seems to me that the conclusion is irresistible that either somebody else made the decision and directed Mr. Mk to implement it or alternatively it was suggested to him as the appropriate thing to do and he simply accepted that without further ado. Furthermore, the only possible explanation for selecting three out of the five employees concerned for suspension was that the view was taken that the contents of their mailboxes represented more serious misconduct than that of the two who were not suspended. If that is so, it must follow as a logical consequence that the suspensions were nothing to do with the pending investigation and disciplinary process but rather were an expression by the bank of its view of the seriousness of the matter and its resolve to punish those responsible accordingly.
51. That conclusion is supported by the evidence of Mr. Mahon and Mr. Kelly about their first meeting on the 27th February, 2009 about Mr. R’s case, when Mr. Kelly said that the bank was taking a serious view of the matter which was a rising trend. That comment, when seen against the background of the events of the previous ten days or so, suggests to me that the bank had already determined to make an example of Mr. R.
Discussion
52. The bank’s disciplinary procedures quoted above refer to the concept of gross misconduct which may include breach of the group email policy. Of course, every breach could not constitute gross misconduct, or perhaps misconduct at all, and it is a question of degree in each case. The evidence suggests that the bank took the view from the outset that gross misconduct was involved. Mr. R was quite unaware of this and his evidence was that whilst the matters complained of might amount to misconduct, they were certainly not gross misconduct. Mr. Mk took a different view, concluding that Mr. R’s breach of the email policy did constitute gross misconduct of a degree which warranted dismissal. However, the first time that gross misconduct was mentioned to Mr. R was in Mr. Mk’s letter of the 5th of May, 2009, advising him that he would be dismissed unless he could persuade Mr. Mk otherwise at the stage two meeting. Whether the behaviour complained of was gross misconduct or simply misconduct is clearly a qualitative judgment in much the same way as is an assessment of the content of the emails. Whilst classifying the conduct as falling into a particular category may be viewed by the bank as relevant to the sanction it may impose within the framework of its own procedures, it is, in my view, of limited assistance in determining whether there were substantial grounds justifying the dismissal. In coming to a view on that issue, it is necessary to examine the factual background against which the conduct in issue arose.
53. Mr. R’s evidence was that the practice of circulating these inappropriate emails was widespread. The evidence put before me certainly demonstrated significant evidence of the circulation of this type of material not only within the bank but throughout a large number of public companies and state and semi-state bodies. No evidence was led by the bank to contradict Mr. R’s evidence on this point, which I accept. Mr. R struck me as an honest and truthful witness not given to exaggeration or hyperbole. I also believe that the bank was well aware of the practice. The bank itself relied on the IBOA circular of November, 2006 addressed to breaches of the email policy. I also accept Mr. R’s evidence that he was not aware of this circular although as I have said, the bank certainly was. Further Mr. Kelly’s comment to Mr. Mahon that this was a rising trend indicates a degree of prior knowledge.
54. Despite this knowledge, there was no evidence of any significant attempt by the bank to address this issue. If it was a rising trend as Mr. Kelly said, it seems to me that steps could have been taken whether by way of circular notices, team briefings or whatever method to ensure that staff were left in no doubt as to the bank’s attitude and the likely sanctions that might be imposed for a breach of the policy. In the absence of any such steps by the bank,its employees, whilst aware in general terms of the policy, might well have concluded that it was more honoured in the breach than in the observance. Mr. Mahon’s uncontroverted evidence was that up to the time that Mr. R was suspended, nobody had ever been either suspended or dismissed for breach of the email policy. Some dismissals did occur in the bank’s subsidiary, the ICS and although events were unfolding at that time, the dismissals did not actually occur until post-February, 2009.
55. It seems to me that if a policy of zero tolerance was going to be adopted by the bank to breach of its email policy, its employees were entitled to some notice of this policy shift. This would not have been difficult to achieve. From Mr. R’s perspective, it clearly never occurred to him that in sending on chain emails, he was potentially exposing himself to dismissal. I have no doubt that had he known, he is very unlikely to have engaged in this conduct. He certainly had little reason to anticipate what occurred. His evidence, again undisputed, was that there was a pornographic calendar hanging in the men’s bathroom at the Blanchardstown branch for years without any attempt by management to remove it. This smacks somewhat of a double standard within the bank.
56. In assessing the reasonableness of the employer’s conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.
57. There is no doubting the inappropriateness of the emails and even Mr. R appears to accept that sending them constituted misconduct deserving of some sanction. It is ultimately a matter of opinion as to whether some or all of the images were pornographic, obscene and so forth but certainly the bankwere entitled to come to a view on this. Whether it is a view shared by the court or anyone else is not material as the authorities suggest. The same considerations apply to whether they ought to be regarded as offensive and certainly to some, perhaps most, people that would undoubtedly be the case. However, the fact remains that there is no evidence that anybody was actually offended by any of these emails. Nobody complained. The bank did not call any recipient to give his or her opinion on them. The bank say that they had the potential to reflect unfavourably on it and perhaps even for it to be sued. That may well be so but none of this actually happened over a fairly long period, perhaps because those in receipt of the emails either wanted to receive them or acquiesced in receiving them. Indeed, as the evidence makes clear, it was by mere chance that Mr. R’s behaviour was even detected. In short, there is no evidence that the bank suffered any loss, damage or detriment whatsoever as a result of the conduct complained of.
58. It should also be borne in mind that none of the emails in question originated with Mr. R, with the sole exception of the one he accidentally sent to his bank email and forwarded only to himself. The number of emails was relatively small – 29 over a two year period out of a total outbox of 1139. I think it is also of some significance that there is at least some evidence that Mr. R was not treated on a like footing to others in the bank similarly implicated. Thus, with regard to the “Anything to Declare” email, regarded as the most serious by Mr. Lonergan, despite clear evidence that this originated in Head Office and was sent on by an official subsequently promoted, no steps appear to have been taken by the bank to even investigate the other employees concerned. Furthermore, it seems that the bank went to considerable lengths to conceal the provenance of this email.
59. As against all this, the effect of the dismissal on Mr. R must be considered. At the time of his dismissal, the country had just been plunged into the worst economic catastrophe in its history, brought about in no small measure it must be said, by the activities of our banks. Mr. R’s prospects of re-employment were extremely poor, as turned out to be the case, and as the bank well knew before it dismissed him. He had in the recent past purchased a house close to his parents in Blanchardstown with the benefit of a mortgage from the bank which he now found himself unable to repay. It is clear from his evidence that these events had a catastrophic effect on him and as he says, destroyed his life and ruined his career. Indeed, this was one of the submissions made by Mr. Mahon to Mr. Mk but unfortunately it fell on deaf ears.
60. Having regard to all of the foregoing, I am satisfied that the conduct of the bank in relation to Mr. R’s dismissal and the events leading up to it could not by any objective standard be described as reasonable. The evidence has driven me to the conclusion that at a very early juncture, probably on the 17th of February, 2009, a decision was made within the hierarchy of the bank to make an example of Mr. R in order to deter others from similar behaviour in the future. That decision may or may not have been made by GIR, but as a minimum was strongly influenced by it. Whilst lip service was paid to observance of procedures, it is clear that there was only ever going to be one outcome. The bank’s response in this case was entirely disproportionate and could not in my view be regarded as falling within the range of reasonable responses of a reasonable employer to the conduct in issue.
61. Accordingly, I am satisfied that the bank has failed to discharge the onus of establishing that there were substantial grounds justifying the dismissal in this case.
Remedy
62. Counsel for Mr. R, Mr. Banim SC, submits that the only remedy which will do justice in this case is re-instatement, as ordered by the EAT. For the bank, Mr. Connaughton SC submits that such a remedy would be wholly inappropriate because Mr. R, by his conduct, must be held to have substantially contributed to his dismissal. That contribution must be considered in determining the remedy and in that regard, the bank rely on the judgment of Carroll J. in Memorex World Trade Corporation v. Employment Appeals Tribunal [1990] 2 I.R. 184. That was a case in which the employer sought to judicially review a decision of the EAT on the grounds that it had failed to hear all the evidence and had decided the case effectively at the end of the employer’s case. The court accepted that the hearing was unsatisfactory for these reasons but declined an order of certiorari on the basis that the EAT had erred within jurisdiction and in any event, the appeal procedure that was available was an adequate remedy. It seems therefore that the court considered that its discretion should not be exercised in favour of granting judicial review. In the course of her judgment, Carroll J., in commenting upon the conduct of the case before the EAT, said (at p. 188):
“The Tribunal should hear all evidence available relating to the dismissal not only to determine whether there were substantial grounds but also because the extent to which an employee contributes to his dismissal is a matter which has to be taken into account in determining the appropriate remedy.”
63. It is clear that these remarks by Carroll J. were obiter as they were not directed to the substantive issue in the case which she had already at that point in her judgment decided. Further, there is nothing from the Law Report to suggest that this point was argued before her in any depth or indeed at all as it did not form the basis for the arguments being advanced by either side.
64. In my view therefore, the court did not intend to lay down any rule of general application in making these remarks and in any event, for the reasons already explained, I do not believe I am bound by them.
65. It will be seen from the express wording of s. 7 that the concept of the conduct of the employee contributing to the dismissal is confined to situations where the court considers that compensation is the appropriate remedy. Thus, in McCabe v. Lisney (Unreported, High Court, 16th March, 1981) and Carney v. Balkan Tours [1997] 1 I.R. 153, the court was in each case concerned with a reduction in the award of compensation having regard to the extent of the employee’s contribution to the dismissal. It would of course be unreal to suggest that the court could not have regard to the conduct of the employee in considering in a general sense whether the remedies of re-instatement or re-engagement were appropriate. However, in my view, it is equally true that the mere fact that the employee may have been guilty of some degree of misconduct, even if that were felt to have contributed to the dismissal, cannot of itself preclude the possibility of those remedies being invoked. At the end of the day, the court has to grant the remedy which will do justice between the parties.
66. I have already concluded that the bank’s conduct in this case was unreasonable and disproportionate. I would add to that by saying that the manner in which it predetermined and manipulated the entire process from the outset reflects little credit on it and visited a very grave injustice on Mr. R.
67. In my view, an award of compensation would fall far short of providing adequate redress in this case and the only appropriate remedy is re-instatement.
Employer v Employee
UD 2202/10
Respondent’s Case:
The respondent is a property management company and employed the claimant as a security officer from 6th August 2004 to 6th June 2010. The claimant worked in Shopping Centre D. GOC was manager of the Shopping Centre during the claimant’s tenure and carried out an investigation into alleged misappropriation of funds by the claimant. GOC was satisfied that the findings of his investigation merited referral onwards for possible disciplinary action and accordingly referred the case to a Director of the respondent.
Claimant’s Case:
The claimant commenced employment on 6th August 2004 and worked as a security officer in Shopping Centre D until his employment was terminated by the respondent on 6th June 2010.
The claimant categorically denied taking money from pay stations located in the centre during his tenure.
Determination:
Having considered the evidence adduced by the respondent on the first day of the hearing and the respondent failing to appear at the resumed hearing, as the company had gone into liquidation, the Tribunal is not satisfied that the claimant misappropriated money from the respondent. The Tribunal finds that the respondent did not discharge the burden of proving to the Tribunal that the reason the claimant was dismissed was fair.
The Tribunal further finds having considered the uncontested evidence of the claimant that he was unfairly dismissed. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the Tribunal awards the claimant an amount of €46,800.00. The Tribunal also awards the claimant €1,800.00 being the equivalent of four weeks pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.”
A Drive v Waste Management Comapany
DHL EXPRESS (IRELAND) LTD DHL v MC
UDD176
FULL RECOMMENDATION
UD/16/40
DETERMINATIONNO.UDD176
ADJ-00000027 CA-00000051-001
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015
KEELINGS LOGISTICS SOLUTIONS v SM
DIVISION :
Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Ms O’Donnell
SUBJECT:
1. Appeal of Adjudication Officer Decision No: ADJ-00000027.
BACKGROUND:
2. The Worker appealed the Recommendation of the Adjudication Officerto the Labour Court on 19th May 2016 in accordance with Section 9(1) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 18th January 2017. The following is the Determination of the Court:
DETERMINATION:
The Appeal
This is an appeal by Sima Maliauskas (the Appellant) against the decision of an Adjudication Officer in his claim that he had been unfairly dismissed by his former employer Keelings Logistic Solutions (the Respondent).
In a decision dated 8thApril 2016 the Adjudication Officer found that the Respondent’s decision to dismiss the Appellant was fair and the Appellant’s complaint was not upheld.
The Appellant was employed from 23rdMay 2005 until his dismissal on 6thAugust 2015. The fact of dismissal is not in dispute.
Summary of the Position of the Respondent
The Respondent contended that the dismissal of the Appellant was fair and reasonable and occurred by reason of unacceptable conduct by the Appellant.
The Respondent operates an Absence Control Programme (ACP) which is collectively agreed with the Trade Union representing staff in the employment including the Appellant and has been in place since 2007. The agreed objective of that programme is to maintain absence levels at or below 3%. Absence levels in 2016 were above 8.42%.
The ACP is a staged process whereby a person’s absence pattern can lead to progressive phases of warnings. A final written warning may be issued only at phase 4 of the ACP and at phase 5 the person may be considered for ‘capability’ dismissal. Where a person reaches a particular stage in the process a period free from absence leads to a ‘step back’ in the procedure.
The Respondent contends that at the end of 2013 it sought to engage with the Trade Union in order to review the ACP but subsequent engagement did not produce an agreement to alter the ACP process.
The HR manager of the Respondent stated in evidence that it commenced a process of review of those employees with the highest levels of absence in April 2015. The Appellant was one such employee.
The Respondent stated that the Appellant was absent on 66 occasions between 2005 and 2015 and that 31 different reasons were submitted by the Appellant for such absences. In addition the Respondent submitted that the Appellant was absent on seven occasions due to compassionate leave afforded on the death of a close family member. The Respondent asserted to the Court that the Appellant had significant accident related absences in 2008 – 2009, 2009 – 2010 and 2014 – 2015 and stated to the Court that such absences, while occurring in years when the Appellant did not exhaust his sick pay entitlement, were not taken into account by the Respondent in coming to its conclusions as regards the absence patterns and levels of the Appellant.
The Respondent submitted to the Court that on eleven occasions the Appellant was absent on sick leave directly before or after annual leave. The Respondent also submitted that the Appellant was absent on sick leave on or directly after his birthday on four occasions in the ten years of his employment.
The Respondent submitted to the Court details of the absence pattern of the Appellant which the Respondent contended demonstrated repeated temporary transformations in the Appellant’s absence pattern when he entered the ‘warning’ phase of the ACP and the subsequent resumption of absences as soon as that phase of the ACP had lapsed.
The Respondent outlined in evidence details of the process engaged in following the initial analysis in 2015 of the Appellant’s patterns of absence during his employment. That process involved an invitation to the Appellant dated 21stApril 2015, following his return to work after an absence on 20thApril 2015, to attend a meeting on 23rdApril 2015. The Appellant on that date raised a query as regards an alleged grievance he had raised in October 2014 alleging discrimination by a named colleague and stating that he believed he was being discriminated against by the Respondent’s HR Department. The Respondent’s HR Department responded on 23rdApril 2015 to advise that when the Appellant raised a matter in October 2014 he had been written to seeking clarification but that the Appellant had not responded.
The Respondent stated that on 22ndApril 2015 the Appellant left the workplace without permission saying that he was stressed. This was followed by medical certificates. The Appellant was, on 28thApril 2015, referred to the Respondent’s occupational health specialist. The Appellant attended that specialist on 11thMay 2015. That specialist confirmed to the Respondent on 13thMay 2015 that the Appellant was fit to attend workplace meetings and confirming her advice to the Appellant to attend the workplace to resolve his alleged workplace issues.
The HR Manager of the Respondent stated in evidence that, in line with the normal practice of the Respondent, the Appellant was then invited to meet with the HR manager of the Respondent. That meeting took place on 21stMay 2015. The HR Manager stated in evidence that at that meeting the Appellant stated that the Respondent’s doctor was biased and that the Respondent was ignoring his grievances. The HR Manager subsequently wrote to the Appellant on 21stMay 2015 inviting him to raise any grievances which he felt he had and also stating that he would be sent to another doctor. The Appellant attended another Doctor on 28thMay 2015 who advised that the Appellant should engage with the Respondent to resolve any issues he believed were outstanding.
The Appellant attended a formal investigation meeting on 11thJune 2015 with a manager of the Respondent. The Appellant was represented by a Trade Union representative.
The manager carrying out the investigation issued an investigation report recommending that the Appellant be put forward for a disciplinary meeting. The investigator identified the matter under consideration as ‘Alleged misconduct – manipulation of company policy and misuse of company sick pay’.
The Appellant attended a disciplinary meeting on 24thJune with a manager of the Respondent. He was accompanied by a Trade union Representative. The Appellant was subsequently absent from work and was asked to attend the Respondent’s doctor again. The respondent’s doctor found that the Appellant was fit to resume work on 5thAugust but he did not attend for work that day. On 6thAugust the Respondent wrote to the Appellant advising him that the disciplinary meeting had resulted in a finding that he should be dismissed. That letter also advised the Appellant of the means to make an appeal.
An appeal hearing was held on 20thAugust 2015 where the Appellant was accompanied by a Trade Union representative. The Appellant was advised on 28thAugust 2015 that the decision to dismiss was upheld.
The Respondent contended to the Court that the decision to dismiss was a proportionate response to persistent manipulation of the Company’s sick pay and ACP policies and abuse by the Appellant of the compassionate leave policy. The Respondent further contended that the procedure adopted by the Respondent was in line with its published and agreed disciplinary policy and that the procedure was operated fairly.
Summary of the position of the Appellant.
The Appellant contested the assertion by the Respondent that he had availed of seven instances of compassionate leave and stated in evidence that he had done so on five occasions only.
The Appellant did not dispute the detail of other absence patterns and instances put before the Court by the Respondent and acknowledged the contention that he had been absent on 66 occasions totalling 316 days.
The Appellant contended that the Respondent operated an Absence Control Policy (ACP) which provided for a phased process wherein absences were considered by the Respondent and acted upon if necessary. The Appellant contended that the Respondent could not undertake a disciplinary process outside the ACP but that that it had done so in this case. The Appellant contended that the procedure followed by the Respondent was consequently unfair.
The Appellant contended that he had not been made aware that his absence pattern could give rise to a risk of dismissal. The Appellant contended that his absences were dealt with throughout his employment under the ACP and that he had never been accused of dishonest behaviour.
The Appellant asserted to the Court that he had no control over when he is ill but that he had always followed procedures when he was ill.
The Appellant contended that a grievance he had raised in 2014 alleging discrimination had not been followed up by the Respondent and that Respondent had failed in its duty of care to him.
Discussion and conclusions.
The Court has considered in detail the written and oral submissions of the parties.
The extensive absence pattern of the Appellant is not in dispute and neither is it disputed that his absence pattern regularly resulted in his being advanced through the phases of the ACP policy. Advancement through the policy brought to the Appellant’s attention the fact that his absence levels were a cause of concern to the Respondent.
The Court notes that the Respondent decided in 2015 to review the absence patterns of those employees with the highest absence levels in the organisation. The Court further notes that this review led to a decision to investigate the absence patterns of the Appellant. That investigation was followed by a disciplinary procedure. All of the investigative and disciplinary procedures employed by the Respondent were those which are the subject of collective agreement in the employment and circulated and made known to all employees including the Appellant. The Court is satisfied that the procedures were operated in a fair manner having due regard to the Appellant’s entitlement to representation and to natural justice.
The Court cannot accept that the Respondent was not entitled to review the absence patterns of those of its employees with high levels of absence. Neither can the Court conclude that where issues of concern were identified in that review the Respondent was not entitled to investigate the matter. The Court accepts that the Respondent, notwithstanding the existence of the ACP, is entitled to initiate its disciplinary procedure whenever an investigation concludes that circumstances are such as to warrant the operation of such a procedure.
The Court can but observe, noting the absence history of the Appellant, that the ACP was clearly incapable of addressing a situation where the Respondent was faced with an extraordinary level of absence which, if repeated widely in the enterprise, would have been wholly unsustainable. The Court however accepts that it was not the level of absence which gave rise to disciplinary procedures in this case but rather it was alleged misconduct through manipulation of company policy and misuse of company sick pay which was at issue following an investigation. The absence levels of the Appellant and a contention of manipulation and misuse of policies by him are distinct matters.
The Court finds that the Respondent was entitled to address the matters of alleged manipulation of company policy and misuse of company sick pay through the clearly enunciated and collectively agreed disciplinary procedure which afforded full and adequate opportunity for the Appellant to state his case and to defend himself comprehensively. The Court further finds that the procedures were employed fairly and correctly in this case.
The disciplinary process concluded that the Appellant had abused the systems in place in the company and that the trust and confidence necessary to sustain the employment relationship had been eroded. The Respondent, through the disciplinary process, concluded that the Appellant was guilty of gross misconduct in that he had deliberately manipulated company policy and misused the company sick pay scheme. The Respondent determined that dismissal was the appropriate and proportionate response to the findings of the disciplinary process
The Court has found that the investigative and disciplinary processes employed by the Respondent were fair and were conducted appropriately. The role of the Court therefore is to determine whether the decision to dismiss in the circumstances was within the range of responses of a reasonable employer to the findings of the disciplinary process. The Court concludes that the decision to dismiss was within that range in this case.
The Court finds that the Appellant was not unfairly dismissed.
Determination
The Court determines that the Appellant was not unfairly dismissed and the Appeal fails.
The decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Foley
CO’R______________________
7th February, 2016Chairman
UD826/2013
VB v Marks & Spencer (Ireland) Limited
Eileen Flynn v Sister Mary Anna Power and the Sisters of the Holy Faith
High Court (Circuit Court Appeal)
8 March 1985
[1985] I.L.R.M. 336
(Costello J)
COSTELLO J
delivered his judgment on 8 March 1985 saying: There is a secondary convent school for girls situated at Rabercon, New Ross, Co. Wexford, managed and controlled by members of the order of nuns named as the second-named respondents in these proceedings. It has not been necessary to consider the details of the management structure of the school or the persons in whom the school property legally vests and I will refer in this judgment to the ‘respondents’ as meaning both the order and its members (the school principals for the time being and the school manager) who were directly concerned in the events which have given rise to these proceedings. The appellant, who is now aged 30 years, was employed as a teacher in the respondent’s school. On 22 August 1982 a letter was written to her by the school manager terminating her position in the school as from 30 November 1982. On 4 March 1983 she gave notice of appeal to the Employment Appeals Tribunal under the Unfair Dismissals Act 1977, claiming (i) that her dismissal was unfair and (ii) her reinstatement in the school. The tribunal’s decision of 3 February 1984 was that the dismissal was not unfair. From this decision the appellant unsuccessfully appealed to the Circuit Court. From the decision of the Circuit Court an appeal has been taken to this Court. The Act confers no express appellate jurisdiction on the High Court, but the respondents have accepted the validity of an earlier High Court decision on the point and agree that an appeal lies. Accordingly I have heard this matter as an ordinary Circuit appeal and will determine it on the evidence adduced at the hearing before me.
The basic relevant facts are not really in dispute. The appellant was first appointed to the school in a temporary capacity as a teacher of Irish and History. She commenced her duties in September 1978. In April 1979, she was offered and accepted a permanent appointment. The appointment was made in a very informal manner and because of a dispute which then existed no written contract was entered into. There were some complaints about the appellant’s punctuality in the academic year 1979/80 but these were of no great significance and her professional work was found to be of a high standard. But in the academic year 1980/81 the situation deteriorated. Not only were there complaints relating to the quality of her work but, of much more importance, the principal learnt from formal complaints by parents that an association between the appellant and a married man (whose wife had recently left him and who owned a licensed premises in the town) had developed. The principal is a very experienced teacher and administrator and a very balanced and fair-minded person. She would not have taken the steps which she did unless satisfied that what she was told was not mere idle gossip. The matter in her judgment was not a trivial one, and she considered that a situation existed which in the light of her responsibilities as she saw them she could not ignore. On 13 August 1981 she asked the appellant to come to see her. She informed *338 her that the interview must be regarded as an official one, and she then told her that she was aware that the appellant was having an association with a married man, that this had been the cause of grave disquiet amongst many parents and that unless a remarkable improvement in the unhappy situation took place the appellant’s contract would be terminated at the end of the school year, 1981/82. The meeting was a very courteous one on both sides. The appellant did not for a moment deny that she was having an association with a married man but she indicated that she regarded this as her own affair and of no concern either to the parents or the school authorities. The principal agreed in evidence that apart from referring in their first interview that the school was a Catholic school she had made no reference to the appellant’s private life before this interview. But she knew that the appellant had been brought up in the Catholic faith and in her view she must have been aware of her obligations to the school and so she considered herself justified in imposing on the appellant the requirements which she did.
A new principal took over in September 1981, but the appellant was left in no doubt that the position remained unchanged. The new principal interviewed her and asked her to confirm as correct a written record of the August meeting. The appellant stated that she had received advice that she should sign nothing, but verbally confirmed the accuracy of what was read over to her. She was told that the new principal would keep a file on the situation and so it must have been perfectly clear to her that, whether rightly or wrongly, the respondents would terminate her contract if she did not terminate association to which they objected. She chose not to do so. Indeed a new development in it occurred in the following November when the appellant moved into the dwelling accommodation attached to the licensed premises where her friend lived with his three young children and has openly lived with him there since.
In the months following their first interview the new principal had occasion formally to draw the appellant’s attention to her non-attendance at classes and her failure to give notice of inability to attend. It is unnecessary for me to detail these complaints here. Of immediate relevance to the issues in this case is an interview which took place on 15 March 1982, at which the appellant was asked whether it was true that she was pregnant. She emphatically denied that this was the case, whilst freely admitting that the relationship which had been referred to the previous year was still continuing. But she was very troubled about the situation, and she explained how torn and wrecked she felt and that she was contemplating leaving the town altogether. She asked the principal to pray for her. On 2 April the principal again referred to the parents’ concern at the fact that they believed that the appellant was pregnant. She again denied the suggestion, but said that she was going home for the week-end to have a long think about her position. On 20 April in a most distressing and emotional interview she finally admitted that she was pregnant. She explained that she thought her baby was due in July, and that she was thinking of going to France or England for the birth. The principal offered to help in any way she could, urging her not to go to France and offering to contact her brother (a priest in London) who might be able to help. This she did, and later in the week told *339 her that arrangements could be made to look after her and her baby in London and that she could stay in Dublin in her mother’s house on the way to the airport. In case this narrative might suggest otherwise, I should make it clear that the principal was acting out of compassion and sympathy for the appellant; and had no ulterior motive; neither she nor her counsel have suggested otherwise in this Court. She wanted to be of practical assistance and pressed the appellant to obtain medical help immediately and informed her of her rights to maternity leave.
The contract of employment was made on behalf of the school authorities by the school manager, and on 29 April a meeting between the school manager and the appellant took place. It began by the appellant asking her ‘are you going to dismiss me’, but she was told that the manager had come to discuss the situation with the appellant. It was obvious that the appellant was under great strain and no final resolution of the situation then occurred. The manager explained the religious nature of the school, referred to the rights of the parents of children at the school and the concern expressed by them at the situation, making it clear that if the appellant did not change what she termed her ‘life-style’ that her position in the school would be untenable. For her part, the appellant quite frankly admitted that she was living with a married man, that she loved him and that she would not leave him.
The day after this interview the appellant called on the principal and told her that she had decided to have her baby in London and did not convey her change of mind in this connection until early in June. The principal received a telephone call on 9 June informing her that the baby had been born the previous day. On 6 August the appellant was told that if she did not resign that she would have to be dismissed. As she did not do so, the manager wrote to her on 22 August. It is admitted that this letter accurately sets out what happened at the interview of 6 August between the manager and the appellant. In addition it explains why the respondents dismissed the appellant. I should refer to it in some detail.
Having referred to the meeting and expressed her thanks for the appellant’s willingness in coming to see her and her view that as school manager she was required to give ‘primary consideration to the interests of our pupils’ the manager wrote:
During our discussion of 6 August 1982:
1. I reminded you of our meeting on 29 April last when I informed you (inter alia) of complaints received from parents regarding your life-style.
2. I then informed you that after careful consideration and in the context of my duty as manager I could not allow you to continue teaching in the school, because of your open rejection of the norms of behaviour and the ideals which our school exists to promote.
3. I reminded you of the scandal already caused and of our obligations to our pupils and to their parents.
4. Recognising that you viewed the matter from a different standpoint I suggested that it would be in your best interests to offer your resignation.
5. I strongly recommended that you consider very carefully all that had been said and I suggested that you seek such advice as you thought fit.
6. I stressed, once again, my desire to act with compassion. For this reason I offered to give *340 you, if you did resign, a sum of money which would equate to three months’ remuneration, in lieu of notice, although making it clear at the same time that we were under no obligation to do so.
7. Finally, I made it clear that if having given the matter consideration you were not prepared to resign then I would have no alternative but to dismiss you.
8. You agreed to think the matter over and let me know your decision by Monday 16 August 1982.
Having noted her decision not to resign, and having referred to her conduct as being ‘fundamentally inconsistent’ with her position as a teacher in the school the letter terminated the appellant’s employment with effect from 30 November following. A cheque for £2,026 was enclosed with it and it contained a request that ‘in the interests of the pupils’ the appellant would not attend school when it opened in early September. On 29 August the appellant told the principal that on the advice of her solicitor she would contest the manager’s decision and on 28 February following notice of claim under the provisions of the Unfair Dismissals Act 1977, was served.
I can briefly outline the statutory provisions under which this claim is brought.
The 1977 Act contains a new and self-contained code of rights and remedies in cases in which an employee to which the Act applies is ‘unfairly dismissed’, as defined. When an employer terminates a contract of employment this is deemed to be a ‘dismissal’ (s. 1), and every dismissal is deemed to be unfair unless ‘having regard to all the circumstances there were substantial grounds justifying the dismissal’ (s. 6 (1)). The main and substantial issue in this case is whether in all the circumstances it can be said that the respondents had substantial grounds for terminating the appellant’s employment in their school. But this is not the only one. The appellant relies on a provision of the Act by which a dismissal of an employee shall be deemed to be unfair if it results wholly or mainly from the pregnancy of the employee or matters connected therewith (s. 6 (2) (f)) and before going any further I will deal with that point now. It seems to me to be perfectly clear that in this case the appellant’s dismissal did not ‘result’ from her pregnancy or matters connected with it and that the subsection to which I have referred does not assist her case. It resulted from the appellant’s refusal to terminate a relationship of which the respondents had complained long before the fact of her pregnancy was known to them. No doubt the pregnancy confirmed (if a confirmation was needed) the nature of the relationship, but the warning of dismissal had been given before such confirmation had been obtained and had it continued dismissal would have occurred in any event.
On the main issue I was referred by counsel to Spiller v Wallis Ltd (1975) IRLR 362, Cassidy v Goodman Ltd (1975) IRLR 86, Whitlow v Alkanet Construction Ltd (1975) IRLR 321, Treganowan v Knee and Co Ltd (1975) IRLR 247, Nottinghamshire Co. Co. v Bowly (1978) IRLR 252, Newman v Alarmco Ltd (1976) IRLR 45, Wiseman v Salford City Council (1981) IRLR 202.
Whilst these cases are not directly in point they do assist by showing that under corresponding English legislation a rigid line is not drawn between *341 private sexual behaviour outside the place of work (which can never be used to justify a dismissal), and conduct in the place of work (which may do so). One of the principles they illustrate (and indeed it is one accepted as applicable to the provisions of the 1977 Act) is that an employee’s conduct in sexual matters outside the place of employment may justify dismissal if it can be shown that it is capable of damaging the employer’s business.
Of more immediate relevance is a decision of the Supreme Court of Canada, delivered on 20 December 1984, Caldwell and Another v Stuart and Others to which I was also referred. This was a case in which the contract of employment of a Catholic teacher in a Catholic school was not renewed after she had married a divorced man in a civil ceremony. She then instituted proceedings by means of a complaint to the British Columbia Board of Human Rights. At issue in the case was whether or not it was contrary to the Human Rights Code of British Columbia for a denominational school to refuse to employ a teacher who had personally disregarded the teaching of the Church. S. 8 of the Code (on which she relied) deals with equality of opportunity with respect to employment and freedom from discrimination and the case turned on an interpretation of that section. It is obviously different to the provisions of the 1977 Act which falls for consideration in the present case, but some of the observations in the judgment of the Supreme Court are relevant as they deal with the reasonableness of the requirement that Catholic teachers should conform to the religious tenets taught in a Catholic school and to the difference between a secular and a religious school in such matters. In this connection it was pointed out that the test was this: ‘Is the requirement of religious conformance by Catholic teachers, objectively viewed, reasonably necessary to assure the accomplishment of the objectives of the Church in operating a Catholic school with its distinct characteristics for the purposes of providing a Catholic education for its students?’ In answering this question in the affirmative McIntyre J in delivering the judgment of the court said:
The board (that is, the board of inquiry under the Human Rights Code) found that the Catholic school differed from the public school. This difference does not consist in the mere addition of religious training to the academic curriculum. The religious or doctrinal aspect of the school lies at its very heart and colours all its activities and programmes. The role of the teacher in this respect is fundamental to the whole effort of the school, as much in its spiritual nature as in the academic. It is my opinion that objectively viewed, having in mind the special nature and objective of the school, the requirement of religious conformance including the acceptance and observance of the Church’s rules regarding marriage is reasonably necessary to assure the achievement of the objective of the school. (Pages 26 and 27 of transcript of the judgment.)
Holding that the requirement to conform was a reasonable one, that the qualification imposed for employment in the school was a bona-fide one, the Supreme Court held that the board had been correct in holding that no breach of the Code had been established.
I come now to consider whether, bearing in mind that the onus of proof is on the respondents, it can objectively be said that there were substantial grounds which justified the dismissal in all the circumstances of this case.
*342
The gravamen of the respondent’s complaint against the appellant is, in the words of the letter of 6 August 1982, that the appellant openly rejected the norms of behaviour and the ideals which the school existed to promote. The appellant has not contested, as a matter of principle, the right of school authorities to dismiss a teacher who openly rejects its norms and ideals. Nor has she denied that she is living by a code of conduct which is different in important respects from that which the school has been established to foster and instil in its pupils. Her claim is that her private life is her own affair and that there has been no ‘open’ rejection by her of the school’s norms, as alleged.
In adjudicating on this dispute it is important to appreciate that two of the important circumstances in which the dismissal occurred are these. Firstly, the appellant was employed in a religious, not a lay, school and the evidence establishes that such a school has long established and well known aims and objectives as well as requirements for its lay staff which are different to those of a secular institution. Secondly, the evidence establishes that the dismissal occurred not as a punishment for breach of a code of conduct taught in the school, but arising from an assessment made of the effect on the school and its pupils of a continued breach of that code by the appellant. In making their assessment the respondents were, it seems to me, entitled to take into account that the appellant’s association was carried on openly and publicly in a country town of quite a small population; that within a short period of time it would have been common knowledge in the town (a) that the appellant was associating on a regular basis with a member of the town’s business community whose wife had recently left him, (b) later, that she had commenced to live with him as man and wife, and (c) that she had a child by him. But what is more to the point, the respondents were entitled to conclude that these facts must have become known to many if not all the pupils in the school, and that they would regard her conduct as a rejection of the norms of behaviour and the ideals which the school was endeavouring to instil in and set for them. I do not think that the respondents over emphasised the power of example on the lives of the pupils in the school and they were entitled to conclude that the appellant’s conduct was capable of damaging their efforts to foster in their pupils norms of behaviour and religious tenets which the school had been established to promote. In these circumstances they had substantial grounds for dismissing her.
Finally, the appellant submitted that as there was no express term in her contract of employment bearing on her private life or requiring her adherence to a particular moral code and as none is to be implied then the dismissal is unfair because she was under no contractual obligation to act as the respondents had required of her. The contract of employment in this case was a very informal one. But because of the view I take of the 1977 Act it is unnecessary for me to decide what, if any, implied terms it contained. Undoubtedly, in certain circumstances it could be unreasonable to dismiss an employee for conduct which is not prohibited by the terms of the contract of employment. But in considering a claim under the Act the test is: in all the circumstances were there substantial grounds to justify the dismissal? And not: was the *343 conduct relied on to justify the dismissal prohibited by contract? In reaching a conclusion on this issue the terms of an employee’s contract are part of, but only part of, the overall circumstances to be considered by the court. In the present case, the appellant knew from her own upbringing and previous experience as a teacher the sort of school in which she sought employment, and should have been well aware of the obligations she would undertake by joining its staff. Even if the contract of employment was silent on the point (a) she must have known that objection could be taken that her conduct violated her obligations to the school and (b) she was in any event given an opportunity to alter it. It cannot therefore be said that in this case the absence of an express or implied contractual term relevant to the matters of complaint tainted with unfairness a dismissal which otherwise was justified.
I must therefore dismiss this appeal.
Berber -v- Dunnes Stores Ltd
[2009] IESC 10 (12 February 2009)
Judgments by
Result
Concurring
Finnegan J.
Appeal allowed – set aside High Court Order
Denham J., Hardiman J.
Judgment of Mr Justice Finnegan delivered on the 12th day of February 2009
The respondent was an employee of the appellant. The respondent in his pleadings advances a number of causes of action. For the purposes of this appeal the issues which arise are as follows:-
1. Was the respondent wrongfully dismissed by reason of a breach by the appellant of the implied term of the contract of employment that it would not conduct itself in a manner likely
to destroy or seriously damage the relationship of confidence and trust between employer and employee, such breach amounting to repudiation of the contract of employment which
the respondent was entitled to accept.
2. Was the respondent in breach of the contract of employment and/or negligent and in breach of duty as a result of which the respondent sustained personal injury and special damage
being five months loss of earnings referable to a period over and above the three month notice period during which the respondent was unemployed in consequence of personal
injury.
The factual background
The respondent commenced employment with the appellant as a trainee manger in April 1980 at the age of nineteen. On completion of his training he was employed as a store manager at various locations until 1988. From 1988 until November 2000 he transferred from store management to the position of buyer being successively group footwear merchandiser, men’s footwear buyer and men’s readymade buyer. On his last management performance review in February 2000 his performance was generally rated at the level of “effective contribution”. The assessment provided for four performance standards in descending order – excellent, highly effective, effective contribution and below standard. The review contained a comment “colour issue”. Some years prior to that review the appellant had a colour blindness test carried out on all buyers and the respondent was reported as colour blind. Notwithstanding this he had been moved to a position as men’s readymade buyer. From February 2000 onwards the plaintiff’s evidence was that there was a change of attitude towards him evidenced by the following:-
(a) Unlike previous years as a buyer when he spent as many as fifty days abroad during 2000 he was sent abroad only once.
(b) There was an increased interest in the state of his health notwithstanding an excellent work attendance record. He had been diagnosed with Crohn’s disease in 1978. He had a
recurrence of his disease in 1995 and again in spring 2000. In the years 1995, 1996 and 1999 he missed one day through illness. He had no absences in 1998. He was absent for
five days in 1997 and seven days in 2000 up to 23rd November 2000 (the relevance of which date will appear hereafter).
In July 2000 he was told that he was not being sent on a trip to the Far East because Mrs Heffernan was concerned that he might get ill on account of his Crohn’s disease and he considered this “bizarre”. In October 2000 the respondent was informed that he was to be transferred from buying back to store management and his colour blindness was adverted to at this time. He was informed on the 22nd November 2000 that he was to be moved to the appellant’s store in the ILAC Centre Dublin as either department manager of menswear or ladieswear. The respondent considered this demotion and sought a meeting with Mrs Heffernan and a meeting took place on the 23rd November 2000. At the meeting it was agreed that the respondent would return to store management initially at the appellant’s store in Blanchardstown Shopping Centre, which was regarded as it’s flagship store, where he would undergo training with a view to being fast-tracked for appointment as store manager or regional manager within six to twelve months. The respondent’s understanding was that he would commence work in the ladieswear department in Blanchardstown on the 4th December 2000. On the 27th November 2000 the respondent was directed to report for duty that day to Blanchardstown and to take up a position in the homewares department. He considered this a variation of his agreement with Mrs Heffernan and he tried to contact her without success as she was abroad. He did not go to Blanchardstown on the 27th November 2000 but was contacted the next day by the director of store operations Mr McNiffe. On the 28th and 29th November the respondent had three meetings with Mr McNiffe. At the meeting on the 28th November 2000 the respondent refused to go to Blancharsdstown until such time as he had spoken with Mrs Heffernan. There were two meetings on the 29th November 2000. At the first meeting the respondent read out a statement which he had prepared but refused to furnish a copy of the same to Mr McNiffe and maintained his refusal to go to Blanchardstown. At the second meeting the respondent maintained this position and Mr McNiffe suspended him from work with pay. Thereafter the respondent’s communications to the appellant were largely through his solicitors. The first solicitors’ letter dated 7th December 2000 made it clear that the respondent would go to Blanchardstown on the terms which he had agreed with Mrs Heffernan. The matters raised on his behalf were that the transfer was taking place seven days earlier than agreed, a plan to fast track him was not yet prepared and that the position was in homewares. In the letter the respondent’s solicitors said in relation to the respondent’s suspension:-
“The effect of this quite extraordinary conduct on the part of the company towards our client and the stress generated by it, has resulted in our client becoming ill and he attended his doctor on 1 December and again today, 7 December, who has ordered him to rest and certificates to this effect have been delivered to the company.”
The letter threatened proceedings if the suspension was not lifted. In a short report of 31st January 2001 the respondent’s treating surgeon had this to say:-
“Over the last while he has had an exacerbation of symptoms (of Crohn’s disease) and I have no doubt the recent wrangle has exacerbated his symptoms and has resulted in him having to increase his medication.”
In a reply of 12th December 2000 the appellant’s solicitors gave as the reason for the respondent’s suspension his attitude at the meetings with Mr McNiffe, his persistence in seeking to speak to Mrs Heffernan and his refusal to explain his issues to Mr McNiffe which they categorised as unreasonable. The letter indicated that the appellant was prepared to overlook the incident provided that the respondent reported to work in Blancharstown as soon as certified fit to do so by his doctor.
Having considered this evidence the learned trial judge categorised the attitude of each of the parties. The respondent considered that Mrs Heffernan was intent on ousting him from his employment. He attributed this to jealousy of the respondent’s brother who had achieved remarkable commercial success. Mrs Heffernan had alluded to this at the meeting on the 23rd November 2000. The learned trial judge found that the appellant was motivated by sound management considerations in deciding to transfer the respondent from buying to store management. However the respondent’s solicitors letter of the 7th December 2000 should have sounded alarm bells with the respondent’s senior management as to the respondent’s state of health. On the other hand the appellant inferred from the respondent’s conduct that he had an ulterior motive in that he was attempting to orchestrate a situation in which he could get a severance payment or compensation: the learned trial judge held that this was an incorrect inference. She concluded that while some of the respondent’s behaviour might be characterised as unreasonable, it was attributable to his trust in the appellant’s senior management executives having been shattered. The learned trial judge noted that responses from Mr McNiffe to the respondent’s solicitors letters were sent directly to the respondent at his home address sometimes by courier and sometimes on Saturday, and, while the appellant was entitled to communicate directly with the respondent this course heightened the respondent’s distrust of the appellant and increased the stress he was under.
The respondent reported for work in Blanchardstown on 28th December 2000 having been cleared to do so by his doctor. There was an incident that day. He was dressed casually in the manner in which he dressed while working as a buyer in Head Office. He was informed by Mr Sills, the store manager, that the dress code for managers was a conservative coloured suit and formal footwear. The respondent asked Mr Sills to put that in writing and Mr Sills did so on the 29th December 2000. The respondent explained that he was on the defensive at this time because of the cumulative effect of the problems which he was having. He ceased work again four days later on account of ill health. He contended that his treatment at Blanchardstown in this period exacerbated his ill health. He particularised two matters:-
(a) A document entitled “Drapery Management Analysis” widely circulated included his name under the heading of “new trainees” which he considered humiliating, defamatory and
vindictive. The document is in fact no more than a manuscript duty roster for the particular store for a particular week.
(b) A personalised twelve week homewares training plan which was furnished to him on his arrival was appropriate to a newly joined trainee and failed to take account of his twenty one
years experience.
These complaints were contained in a letter of 11th January 2000 from the respondent’s solicitors in which it was alleged that these matters were a continuation of a course of treatment which began the preceding February designed to sideline him out of management and out of his employment. The letter demanded the withdrawal of the Drapery Management Analysis and the preparation of an appropriately devised training plan. There was a measured and conciliatory response from Mr McNiffe by reply dated 12th January 2000. Mr McNiffe explained the mis-description in the roster as an oversight and sought flexibility on the respondent’s part in giving the training programme a chance to work. He explained that in the twelve years since the respondent had been in store management much had changed and that it was important that the respondent re-learn the business from the ground up. The respondent was requested to return to work the following Monday. By letter dated 21st February 2001 the respondent’s solicitors advised the appellant that the respondent’s treating surgeon had indicated that the respondent might return to work but that before doing so the respondent required confirmation in relation to the training programme and his future career path and that a communication be circulated to all management and staff within head office and all stores to correct the mis-description in the Drapery Management Analysis. There was further correspondence but ultimately a meeting was arranged for the 7th March 2001 between the respondent and his solicitor and Mr McNiffe and the appellant’s solicitor and at which a stenographer retained by the respondent attended. Following the meeting Mr McNiffe wrote to the respondent setting out the matters which had been, he considered, agreed and this gave rise to further disagreement and further correspondence. The first matter in issue was the length of time before the respondent would proceed to a position as store manager or regional manager: Mr McNiffe suggested that this could take eighteen months with an initial position as No. 2 before progressing to a position of No. 1. in store management. The respondent was insisting on a time scale of three to six months rather than the six to twelve months mentioned by Mrs Heffernan at the meeting of 23rd November 2000 notwithstanding that he had only attended for work in Blanchardstown for four days since that meeting. The second related to the training programme and the extent to which the respondent should be involved in its preparation. The first matter was not resolved prior to the respondent leaving his employment. On the second matter while a training programme was produced on the 8th March 2001 the respondent’s solicitors raised in correspondence a number of points in relation to the same with which Mr McNiffe was not prepared to agree. A third matter was in relation to the Drapery Management Analysis and concerned the text of an announcement made. The announcement as circulated was not in the terms agreed. The learned trial judge held that the substance of the announcement was as agreed and she did not consider the variations to be of significance. The circulation was narrower, the learned trial judge held, than the respondent was entitled to expect.
There were further live issues at this time. One related to a Christmas bonus of €1,500 which the respondent claimed to be entitled to in respect of Christmas 2000. Another related to a schedule of monthly meetings which it was agreed on the 7th March 2001 should take place between the respondent and senior management. A meeting scheduled for the 8th May 2001 had not taken place and by letter dated 9th May 2001 the respondent’s solicitors complained of this. The learned trial judge held that in view of the respondent’s absence through illness the appellant was justified in considering the complaint unreasonable.
The respondent returned to work towards the end of April 2001. His solicitors continued to raise issues on his behalf in correspondence. He continued to work until the 15th May 2001. On the 15th May 2001 the respondent was rostered for duty from 10 a.m. to 8.30 p.m. but incorrectly believed that he had been rostered for duty from 8.30 a.m. to 6 p.m. He attended at 8.30 a.m. During the morning Mr Sills the store manager made it clear to the respondent that he was required to attend until 8.30 p.m. There were heated exchanges. Mr Sills made it clear that he was the respondent’s superior and the respondent’s reply was that Mr Sills could deal with his solicitor. He did not work until 8.30 p.m. The learned trial judge found that in relation to this incident the respondent was in the wrong and that Mr Sills conduct was understandable.
By letter dated the 30th May 2001 the respondent’s solicitors wrote to the appellant’s solicitors as follows:-
“We refer to our letters of 1 May and 9 May, neither of which have received a response. Our client has kept us closely advised of the developments at his place of employment which have had a severely adverse effect on his health. We have advised our client that the company has repudiated its obligations towards him as an employee. Our client has written the enclosed letter to Mrs Margaret Heffernan.
We have been instructed to seek damages against the company in relation to the company’s repudiation of the contract of employment and to the reckless imposition by the company of physical and emotional suffering on our client including an abusive verbal attack on our client by a senior manager in the presence of other members of management and staff. Unless we receive from the company within seven days of the date of this letter, adequate proposals to compensate our client, proceedings will issue without any further notice. In that event we shall be obliged for your confirmation that you have authority to accept service of such proceedings on behalf of your client.”
The letter from the respondent enclosed therewith complained that the appellant had failed to honour his understanding of the meeting of 7th March 2001. He complained of the altercation with Mr Sills on the 15th May 2001. Finally he complained that his working environment was hostile to his health and in consequence he had been advised by his consultant Professor Ó Morain to cease working in that environment.
Thereafter the respondent was out of work for a period of approximately eight months. At the end of January 2002 he obtained a position as a buyer with another retail group on terms no less favourable than those which he had enjoyed with the appellant.
High Court findings on the evidence
On the evidence the learned High Court judge made the following findings:-
(a) There was little disagreement between the parties as to the terms of the contract of employment. In dispute, however, was the respondent’s entitlement to a Christmas bonus of €
1,500 and an annual bonus of €5,000. The learned High Court judge found that the respondent had earned each of these bonuses and awarded the respondent the same in respect
of the period 31st May 2001 to the 19th January 2002 in the amount of €9,079.00.
(b) It was a term of the respondent’s contract of employment that the appellant acting reasonably could assign him from one work location to another and from one management function
to another appropriate management function. Change of work location was not an issue for the respondent. The appellant was entitled to transfer the respondent from buying to a
suitable position in store management commensurate with his experience.
(c) It was an implied term of the respondent’s contract that both the employer and the employee would maintain mutual trust and confidence.
(d) The respondent sought to set up what happened between him and Mrs Heffernan on the 23rd November 2000 as a free standing agreement. The appellant categorised the meeting
as a consultation process. The learned trial judge held that neither view was correct but that what transpired at the meeting on the 23rd November 2000 must be interpreted in the
context of the implied term that both the employer and the employee would maintain mutual trust and confidence.
(e) The appellant acted bona fide in deciding to move the respondent from buying to store management.
(f) The respondent through Mrs Heffernan had a bona fide concern about the respondent’s health. The respondent worked in the same building as Mrs Heffernan and their paths
crossed occasionally. The respondent was unwell from March 2000 onwards and this must have been obvious to anyone who would meet him. He had an uncharacteristic number
of absences because of illness during 2000.
(g) The appellant’s treatment of the respondent up to and including 23rd November 2000 viewed objectively was such that appropriate steps were taken by the appellant to allay the
respondent’s concerns in relation to the proposed move and to protect the employer and employee relationship.
(h) Mr McDermott (the respondent’s departmental head) or Mrs Heffernan or both “were subconsciously, if not consciously, aware of the respondent’s vulnerability at the time of the
meeting of 23rd November 2000.”
(i) After the 23rd November 2000 Mr McNiffe failed to have proper regard to the respondent’s medical condition. This is particularly so after the appellant was informed by the
respondent’s solicitor by letter of 7th December 2000 of the effects of the stress generated by his suspension on the respondent.
(j) In the absence of knowledge of the respondent’s physical and mental condition an objective assessment of the respondent’s conduct after 23rd November 2000 justifies the
conclusion that the respondent was being unreasonable. Samples of such conduct are the respondent’s refusal to share with Mr McNiffe the issues which were troubling him and his
insistence on speaking to Mrs Heffernan at the meetings on the 28th and 29th November 2000, his reaction to Mr Sill’s instruction in relation to dress code on 28th December 2000,
and some of his requirements in relation to the training programme produced on 14th March 2001.
(k) Mr McNiffe adopted an uncompromising stance with the respondent from the outset in requiring the respondent to attend for work in Blanchardstown or else he would be
suspended. After the suspension was lifted Mr McNiffe would not deal with the respondent until he returned to work in Blanchardstown notwithstanding that the respondent was on
sick leave and the appellant had been warned of the effect which his work situation was having on the respondent and of the respondent’s perception of the appellant’s motivation.
The appellant maintained this stance for three months. The stance was informed by the appellant’s perception that the respondent never had any intention of allowing the move to
Blanchardstown to work which view was erroneous.
(l) The respondent’s perception of the appellant’s motivation was reinforced by the error of including his name under the heading “new trainee” on the roster in January 2001 and the
failure to supply him with a suitable training programme.
(m) The appellant ought to have been aware that the extension of the time frame for achieving a position as store manager or regional manager from twelve months to eighteen months
would reinforce the respondent’s distrust.
(n) The delay of one week in producing a training programme would be inconsequential in the normal course of events. In the present case, however, it would be of significance to the
respondent because it was envisaged that he would have it before he returned to work. The insistence that the respondent return to work before the programme was available was
unnecessarily peremptory.
(o) The respondent’s submission that there was a series of breaches of the contract of employment by the appellant, the accumulation of which resulted in a repudiation of the contract, is
not correct.
(p) The manner in which the appellant dealt with the respondent in the knowledge of the precarious nature of his physical and psychological health viewed objectively amounted to
oppressive conduct likely to seriously damage the employer/employee relationship and it did so. Accordingly the appellant breached its obligation to maintain trust and confidence.
Breach of that obligation goes to the root of the contract of employment.
(q) The respondent’s work situation prolonged the respondent’s ill health and caused his failure to respond to treatment.
(r) The respondent was justified in leaving his employment on receiving his treating surgeon’s advice.
(s) The respondent is entitled to an award of damages for wrongful dismissal in the amount which he would have earned had he continued for a period commensurate with the notice to
which he was entitled: three months notice is reasonable notice.
The Law – Breach of Contract
There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise. Malik v Bank of Credit and Commerce International S.A. [1996] I.C.R. 406.
In Lewis v Motorworld Garages Limited [1986] I.C.R. 157 Browne-Wilkinson J. summarised the law as follows:-
1. In order to prove that he has suffered constructive dismissal an employee who leaves his employment must prove that he did so as a result of a breach of contract by his
employer, which shows that the employer no longer intends to be bound by an essential term of the contract: see Western Excavating (E.C.C.) Limited v Sharp [1978]
I.C.R. 221.
2. However, there are normally implied in a contract of employment mutual rights and obligations of trust and confidence. A breach of this implied term may justify the
employee in leaving and claiming that he has been constructively dismissed: see Post Office v Roberts [1980] I.R.L.R. 347 and Woods v W.M. Car Services
(Peterborough) Limited [1981] I.C.R. 666, 670 per Browne-Wilkinson J.
3. The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the
term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a
breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term. See Woods v W.M. Car Services
(Peterborough) Limited [1981] 1 C.R. 666. This is the ‘last straw’ situation.”
As to the “last straw” it was held in Omilaju v Waltham Forest London Borough Council [2005] 1 All ER 75 that the quality that a “last straw” had to possess was that it was an act in a series whose cumulative effect amounted to a breach of the implied term. The essential quality of that act was that, when taken in conjunction with the earlier acts on which an employee relied, it amounted to a breach of the implied term of trust and confidence.
As to whether conduct amounts to a repudiation of the contract the ordinary law of contract applies: the cumulative effect of the acts complained of must be such as to indicate that a party, in this case the employer, had repudiated its contract. Brown v Merchant Ferries Limited [1998] I.R.L.R. 682. It had earlier been held in Woods v W.M. Car Services (Peterborough) Limited [1981] I.R.L.R. 347 by Browne-Wilkinson J. following Courtaulds Northern Textiles Limited v Andrew [1979] I.R.L.R. 84 that any breach of the implied term that the employers will not, without reasonable and proper cause, conduct themselves in the manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee was a fundamental breach amounting to a repudiation since it necessarily went to the root of the contract. This broad statement was not accepted by the Court of Appeal in Bliss v South East Thames Regional Health Authority [1985] I.R.L.R. 308. Nor was it accepted by Douglas Brodie in an article in the Industrial Law Journal, Volume 25, No. 2 at p.121 which article was referred to with approval in both Malik v Bank of Credit and Commerce International and in Browne v Merchant Ferries Limited.
It must not be forgotten, however, that the implied term applies to both the employer and the employee. Thus in Woods v W.M. Car Services (Peterborough) Limited [1981] I.C.R. 666 Browne-Wilkinson J. said:-
“In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee: Courtaulds Northern Textiles Limited v Andrew [1979] I.R.L.R. 84. To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract; the Tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it: see British Aircraft Corporation Limited v Austin [1978] I.R.L.R. 332 and Post Office v Roberts [1980] I.R.L.R. 347. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed; Post Office v Roberts.”
The learned trial judge’s finding in the present case on this aspect was as follows:-
“In my view the (respondent’s) submission that there was a series of breaches of contract on the part of the (appellant) and that the accumulation of those breaches resulted in a repudiation by the (appellant) of the (respondent’s) contract is not correct. The correct interpretation of what happened is that the manner in which the (appellant) dealt with the (respondent) in the knowledge of the precarious nature of his physical and psychological health viewed objectively amounted to oppressive conduct. It was likely to seriously damage their employer/employee relationship and it did so. Accordingly, the (appellant) breached its obligation to maintain the (respondent’s) trust and confidence.”
The learned trial judge found that up to and including the 23rd November 2000 objectively the appellant took appropriate steps to protect the employer and employee relationship. Having regard to the learned trial judge’s findings it is necessary to look at the conduct of each of the parties after the 23rd November 2000. The appropriate test must be applied to that conduct. In relation to the test the following matters are to be noted:-
1. The test is objective.
2. The test requires that the conduct of both employer and employee be considered.
3. The conduct of the parties as a whole and the accumulative effect must be looked at.
4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in
order to determine if it is such that the employee cannot be expected to put up with it.
Conclusion on the breach of contract claim
The test must be applied to the events which occurred after the 23rd November 2000.
On the 27th November 2000 the respondent was instructed to report to Blanchardstown. He did not do so. The appellant made contact with him and discussions took place over the 28th and 29th November 2000. The learned trial judge found that at that date the appellant was “subconsciously” aware of the respondent’s vulnerability. The appellant was indeed aware that the respondent suffered from Crohn’s disease. However the appellant was first notified that stress was exacerbating his Crohn’s disease on receipt of the solicitor’s letter of the 7th December 2000. There was no evidence to justify a conclusion that at the date of these events the appellant’s were aware of the respondent’s mental condition or if it’s effect on his Chron’s disease. Applying an objective test to the suspension of the respondent with pay it cannot be said, in my view, that the same was unreasonable. The appellant acted bona fide and within its rights in deciding to move the respondent from buying to store management and to the location at Blanchardstown. The respondent’s refusal to co-operate until such time as he should speak to Mrs Heffernan was in my view unreasonable. In Harrington v Irish Life and Permanent Plc, the High Court, unreported 18th June 2003 Smyth J. stated the law as follows:-
“(a) The following basic principles are applicable:-
1. the employer impliedly contracts to obey the lawful and reasonable orders of his employer (or his employer’s delegate) within the scope of the employment he
contracted to undertake. Chitty on Contracts (24th ed. Vol. 2 para. 37-050); and
2. it has long been part of our law that a person expudiates the contract of service if he wilfully disobeys the lawful and reasonable orders of his Master. Such a
refusal fully justifies an employer in dismissing him summarily.
(Per Karminski L.J. in Pepper v Webb [1969] 2 All E.R. 216 at 218, cited with approval and adopted by Hamilton J. as he then was in Brewster v Burke & Anor [1985] 4 J.I.S.L.L. 98 at p.100).”
Notwithstanding the seriousness of the respondent’s refusal to comply with the direction given to him the appellant did not seek to dismiss the respondent but rather adopted the significantly less draconian measure of suspending him with pay. This course was adopted only after three meetings over two days at which the respondent was asked to re-consider his stance. Objectively the respondent’s conduct was unreasonable. On hearing from the respondent’s solicitor by letter dated 7th December 2000 the appellant gave an unequivocal assurance of willingness to overlook the incidents provided the respondent returned to work as soon as his doctor should certify him as fit to do so.
When certified fit to return to work the respondent did return on the 28th December 2000. By this date the appellant was on notice of the state of the respondent’s health having received his solicitors’ letter of 7th December 2000. However the respondent had been certified as fit to return to work by his medical adviser and the appellant was entitled to rely on this. Immediately the incident relating to the dress code for managers occurred. The respondent required that Mr Sills instruct him in writing as to the dress code. The exchange, according to the respondent, was not an unpleasant one but the request to put the dress code in writing would justify concerns in the appellant as to the course of future interaction with the respondent. The occurrence, however, is neutral for present purposes neither party having acted unreasonably.
The next incident which occurred was the error in the Drapery Management Analysis or roster which described the respondent as a new trainee. It was a mistake and was promptly acknowledged by the appellant as such. It offended the respondent. However mistakes occur and there is no reason to consider what occurred other than as a mistake. The appellant did not act unreasonably and judged objectively the effect upon the respondent could not reasonably have been anticipated.
The respondent objected to the personalised training plan as being appropriate to a newly joined trainee and as ignoring his twenty one years experience. However he was new to homewares. As pointed out by the appellant much had changed in the period during which the respondent was absent from store management and operating as a buyer. Nonetheless reasonable attempts were made to accommodate the respondent’s concerns and a new plan was provided albeit seven days too late. I would not categorise the appellant’s conduct in relation to the plan viewed objectively as unreasonable. There was a willingness to accommodate some, if not all, of the respondent’s concerns. The learned trial judge found that the appellant was aware of the respondent’s vulnerability at the date of preparation of the original training plan: I understand this to mean the normal anxiety and concern which any employee might feel on a significant change in his employment taking place. I do not consider the appellant’s course of conduct in relation to the training plan as unreasonable or oppressive.
The correction to the Drapery Management Analysis was not in the form agreed but was in substance to like effect. Its circulation was narrower than required. The Analysis was a document internal to Blanchardstown being the store’s duty roster for a particular week. It consisted of a printed document with a number of columns each headed with a brief description of an employee category or function: one such heading was “new trainee” and while not appropriate to the respondent this was the heading best reflecting the respondent’s situation. The form was completed in manuscript listing the names of employees under each category. The respondent required the correction to be circulated by e-mail and internal post to all stores in Ireland, the U.K. and Spain and the respondent through Mr McNiffe accepted that there would be circulation by e-mail to all stores. The correction was circulated to department heads, store managers and regional managers in Ireland. I am of the view that the original limited circulation would not justify the very wide circulation required by the respondent. However his requirement was acceded to by the appellant but not complied with. I am, however, satisfied that the default by the appellant could not amount in isolation to a breach of the implied term in his contract of employment.
Meetings were agreed to take place on a monthly basis and no meeting took place on the 8th May 2001. However as the learned trial judge held this was entirely reasonable as the respondent had attended for work on only four days in December 2000 and did not attend thereafter until late April 2001.
The final matter to which it is appropriate to refer is what occurred when the respondent returned to work at the end of April 2001. On the 15th May 2001 he was rostered for duty from 10 a.m. to 8.30 p.m. but he incorrectly believed that he had been rostered for duty from 8.30 a.m. to 6.00 p.m. When he was required by Mr Sills to remain on duty until 8.30 p.m. there were heated exchanges with Mr Sills insisting that he work until 8.30 p.m. and the respondent refusing to do so. The respondent did not work beyond 6 p.m. and his final salvo was that Mr Sills could deal with his solicitor. This was part of a consistent pattern of conduct and not an isolated incident: the respondent objected to written communications to him being sent to him directly and required that all such communications should be sent to his solicitor. I consider the respondent’s stance in this regard as damaging to the relationship and unreasonable.
That being the history of interaction between the appellant and the respondent and looking at each event individually and at the events cumulatively, I am satisfied that the conduct of the appellant judged objectively was not such as to amount to a repudiation of the contract of employment. The conduct judged objectively did not evince an intention not to be bound by the contract of employment. On the other hand the conduct of the respondent was in the instances mentioned above unreasonable or in error and the employer’s conduct must be considered in the light of the same. In these circumstances the purported acceptance of repudiation of the contract of employment by the respondent was neither justified nor effective. The respondent must fail on his claim under this heading.
The law – personal injuries claim
As the learned trial judge found, this claim can be based in contract or in tort and it is not necessary to distinguish between the two causes of action. The respondent claims that as a result of the appellant’s breach of contract or breach of duty to him he incurred a recognised psychiatric illness and not mere hurt, upset and injury to his feelings and in addition physical injury being the exacerbation of his Crohn’s disease.
In Maher v Jabil Global Services Limited [2005] 16 E.L.R. 233 the plaintiff claimed that as a result of his treatment by his employer, the defendant, he suffered significant psychological harm. The plaintiff claimed that the amount of work which he was required to perform and the pressure under which he was placed by management to achieve targets which he claimed to be unrealistic gave rise to stress and that his employers knew or ought to have known that stress was a likely consequence of their conduct. As authority for the proposition that an employer may be liable for stress engendered injury to health of an employee as opposed to ordinary occupational stress the learned trial judge referred to McGrath v Trintech Technologies Limited [2005] E.L.R. 49, Quigley v Complex Tooling and Moulding, unreported, High Court, Lavan J. 9th March 2005 and Hatton v Sunderland [2002] 2 All ER 1.
The Court of Appeal in Hatton considered four cases in each of which as a result of stress the plaintiff suffered psychiatric illness. In examining the law the court went back to first principles – liability in negligence depends upon three inter-related requirements:
1. The existence of a duty to take care.
2. A failure to take the care which can reasonably be expected in the circumstances and
3. Damage suffered as a result of that failure.
The court held that special problems attend claims for psychiatric injury and that they require care in determination because they give rise to difficult issues of foreseeability and causation and in identifying a relevant breach of duty. As to foreseeability, the issue in most cases will be whether the employer should have taken positive steps to safeguard the employee from harm and the threshold to question is whether the kind of harm sustained to the particular employee was reasonably foreseeable. The test is not concerned with the person of ordinary fortitude. The answer may be found in asking the question whether the employer knew or ought to have known of a particular vulnerability. Stress is merely a mechanism whereby harm may be caused and it is necessary to distinguish between signs of stress and signs of impending harm to health. Frequent or prolonged absences from work which are uncharacteristic for the person concerned may make harm to health foreseeable: there must be good reason to think that the underlying cause is stress generated by the work situation rather than other factors. Where an employee is certified as fit for work by his medical adviser the employer will usually be entitled to take that at face value unless there is a good reason for him to think to the contrary. As to the duty of care the employer’s duty is to take reasonable care and if the risk of harm to health is foreseeable the employer must act reasonably. It is necessary in each case to consider what the employer could and should have done. Finally if a breach of duty is found it is still necessary to show that that particular breach of duty caused the harm complained of: where there are several factors contributing to stress related illness if the employer made a material contribution he will be liable for the whole subject to any rights he may have to seek contribution from others who have contributed to the injury.
Hale L.J. set out a number of propositions which she derived from the case law the following being relevant to this case:-
1. The ordinary principles of employer’s liability apply.
2. The threshold question is whether the kind of harm to the particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from
occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder it is harder to
foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can
withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
4. The employer is generally entitled to take what he is told by his employee (including what he is told by the employee’s medical adviser) at face value unless there is good reason to
think to the contrary.
5. The indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
6. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the
gravity of the harm which may occur, the cost and practicability of preventing it, and the justifications for running the risk.
7. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
8. If the only reasonable and effective steps would have been to dismiss or demote the employee the employer will not be in breach of duty in allowing a willing employee to continue in
the job.
9. In all cases it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
10. The claimant must show that the breach of duty caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.
The medical evidence in this case is as follows. On the 31st January 2001 Professor Colm Ó Moráin, Consultant Gastroenterologist, wrote to the respondent’s solicitor a short report as follows:
“This is to confirm that Adam is a patient of mine. He has Crohn’s disease for which he has had a previous resection done in the eighties but since then he has had recurrence. Over the last while he has had an exacerbation of symptoms and I have no doubt the recent wrangle has exacerbated his symptoms and has resulted in him having to increase his medication.”
In a further short report dated 25th April 2001 Professor Ó Moráin reported as follows:-
“Adam is having ongoing problems with his Crohn’s disease. He had a recent exacerbation and as a result of this he has a probable mass on the right side of his bowel which represents an inflamed portion of his bowl. I feel this is pressing on his bladder and as a result is causing recurrent urinary tract infections. He does need ongoing treatment and unfortunately the continuous stress at work is not helping his symptoms. We are closely monitoring his progress at the moment and he does require strict medical supervision at the moment but I am concerned that the level of stress at work may well be exacerbating his symptoms.
In a report of 31st May 2001 Professor Ó Moráin reported as follows:-
“In the last year, however, Adam has been having a flare-up of his Crohn’s disease and I do feel that the psychological stress he is undergoing has a major role to play in this exacerbation. The flare-up has been characterised by more frequent visits to me and increasing his doses of medication, more marked since February 2000. With his present exacerbation he will be closely monitored at weekly intervals for the next few weeks.
I am concerned about Adam’s deterioration of health and after a long discussion with him I do think that his work situation is certainly not helping health wise and I feel the best approach would be for him to get out of this environment. I feel this would be a positive contribution to his health.”
As to the respondent’s psychological condition there was a report from Dr. Paula McCoy, Consultant Psychiatrist. The following paragraphs of the report set out her opinion:-
“29. The background here appears to be that of a normal individual, with a stable, social and personal family background; and a record of high achievement at the work place, notwithstanding the fact that Mr Berber has suffered from a chronic inflammatory bowel disease since his teens with arduous treatment required at times.
30. The history and clinical findings as I have elicited them would accord with the development of a psychological adjustment disorder, with features of anxiety and possible features of depression, in Mr Berber occurring on a background of work place stress over many months, following the occurrence of the events under consideration. This disorder is likely to have been of moderate severity.
31. It is recognised that the occurrence of ongoing stress disorders may be associated with less favourable clinical outcomes in some chronic medical conditions, including Crohn’s disease and hypertension. In my view the occurrence of the psychological disorder noted at 31 above is likely to have contributed to symptom severity and possibly, to symptom duration in Mr Berber’s Crohn’s disease.
32. The psychological disorder noted at 31 above appears in Mr Berber’s case to have resolved over the months following resolution of the situational stresses with which it was associated (work place difficulties and ensuing period of unemployment). I expect that Mr Berber’s close family support, and his previously stable personality with the passage of time have been favourable factors in his recovery from this disorder.”
The Civil Liability Act 1961 in section 2 defines personal injury as including any disease and any impairment of a person’s physical or mental condition. The learned trial judge accepted Dr. McKay’s evidence and found, as she was entitled to do on the evidence, that the adjustment disorder from which the respondent suffered constituted an illness or injury and that it exacerbated the respondent’s Crohn’s disease and hampered treatment of that disease. She found that the adjustment disorder and the consequential impact was attributable to the manner in which the appellant dealt with the respondent after 23rd November 2000. She found that the injuries suffered by the respondent were reasonably foreseeable and that for the like reasons for which the appellant had been found in breach of contract it was in breach of duty. As I have found that the appellant was not in breach of contract it is necessary to look at those circumstances again and apply to them the appropriate
test.
Causation is not an issue in that the personal injury arose out of the circumstances existing in the work place. The learned trial judge found that at the relevant times the appellant was subconsciously aware of the respondent’s vulnerability. This being so I am satisfied that a reasonable employer applying its mind to the situation would in fact be aware of that vulnerability. However that is not a vulnerability to mental injury but rather that the respondent felt vulnerable by reason of the changes in his occupation from buyer to a position in training for store management. If the respondent had applied its mind to the situation I am satisfied that it was also foreseeable having regard to his vulnerability that if it should fail to take reasonable care it would result in stress. From receipt of the respondent’s solicitor’s letter of the 7th December 2000 the appellant was actually aware that the respondent was suffering from stress and that the stress was affecting the respondent’s Crohn’s disease. Accordingly, at least from receipt of the letter of 7th December 2000 the respondent had a duty to take reasonable care not to cause harm.
The question for determination then is whether the appellant took reasonable care. What is reasonable depends upon the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicality of preventing it, and the justifications for running the risk: Stokes v Guest Keen and Nettlefold (Bolts and Nuts) Limited [1968] 1 W.L.R. 1776. In Hatton v Suderland, Hale L.J. said:-
“It is essential therefore, once the risk of harm to health from stress in the work place is foreseeable, to consider whether and in what respect the employer has broken that duty. There may be a temptation, having concluded that some harm was foreseeable and that harm of that kind has taken place, to go on to conclude that the employer was in breach of his duty of care in failing to prevent that harm (and that the breach of duty caused the harm). But in every case it is necessary to consider what the employer not only could but should have done.”
I have already held had that the employer’s reaction to the events of the 27th, 28th and 29th March 2001 was reasonable. In the incident relating to the dress code there were exchanges but they were not heated and I am not satisfied that the appellant acted other than reasonably. The mis-description in the roster was a mistake and any harm resulting from the same in my view was unforeseeable. The error in relation to the hours upon which the respondent was rostered for duty was the respondent’s mistake. The wording of the circular correcting the error in substance was as agreed. Its circulation was less than that agreed but, insofar as that fell short of the circulation agreed, the shortfall looked at in terms of the circulation of the error was not such as to make injury foreseeable. The training programme as originally drafted the discussions concerning its contents and the seven days delay in producing the revised training plan taken together are not circumstances which make mental injury foreseeable. Insofar as the appellant was unwilling to discuss the contents of the plan while the respondent was absent from work due to stress and its effect on his Crohn’s disease it was perhaps more beneficial to the respondent that matters causing him stress should not be discussed until he was certified fit to return to work by his medical adviser. Had the appellant insisted on discussing the training plan at a time when the respondent was certified as unfit for work such conduct might well be regarded as oppressive conduct. Each of the incidents raised in the course of the hearing and which occurred after the 23rd November taken individually fails on the test of foreseeability. I am satisfied that cumulatively they also fail. The appellant responded reasonably to each incident as it arose and the alternative available to the appellant was to abdicate from all control of the manner in which the respondent would carry out the duties of his employment.
The injury sustained by the respondent being unforeseeable the respondent’s claim based on breach of duty must fail.
Conclusion
For the reasons hereinbefore set out I will allow the appeal and set aside the judgment of the High Court save and except in so far as the sum of €9,079.00 was awarded to the respondent in respect of Christmas and annual bonus which sum should carry interest at Courts Act rate from the 1st June 2001.
Johnathan Hanlon v Smurfit Kappa Ireland Ltd t/a Smurfit Kappa Dublin
UD 1378/2014
Employment Appeals Tribunal
3 February 2016
[2016] 27 E.L.R. 163
The respondent which is part of a multinational group operates a paper-based manufacturing plant. The claimant was employed there as a general operative *164 from 25 May 2007 until his dismissal on 30 May 2014. The claimant had been allowed time off to attend for jury service from 3 February 2014 for a number of days. The arrangement in respect of such leave was that if the claimant was not required for jury service or finished early on any given day he was to return to work. However, although the claimant was not required to sit on a jury for any of those days he failed to attend work on some of them.
An investigation into his unauthorised absence was held and this issue was then referred onwards for possible disciplinary action. That resulted in the dismissal of the claimant. This decision was subsequently upheld on appeal.
Respondent’s case
The health and safety manager for the respondent carried out an investigation into the claimant’s unauthorised absence. This witness reviewed a time management system on a weekly basis. It was brought to his attention that it was unusual that someone would be required to serve as a juror on each day he was required to be available. Therefore this manager sought clarification from the Courts Service as to whether the claimant actually served as a juror as opposed to being available on each of those days in early February 2014. The Courts Service informed the witness that the claimant attended for service from Monday to Thursday but was not selected as a juror on any of those days. They also advised that the claimant was discharged on Thursday and was not required to attend at all on Friday.
This information did not correspond with the information recorded on the time system record. The claimant had been recorded as attending work for part of his shift on Monday and Tuesday and having phoned in to say he was delayed in court and could not attend on Wednesday. There was no record of him attending work or contacting the respondent on Thursday or Friday. As part of his investigation this witness met and took statements from the claimant’s supervisor and the person who entered the information onto the system. Both of these individual told the witness that the claimant clearly told them both at the same time that he had served as a juror and that was why he did not attend work. It was this manager’s evidence that the claimant changed his story a number of times in the course of the investigation. Having completed his investigation he referred the matter onwards for consideration under the disciplinary process and had no further involvement in the matter.
A shift supervisor who worked on the day shift (07.30 to 16.00) week commencing 3 February 2014 had been told that the claimant who was rostered for that shift was due to report for jury service that week. Since potential jury duty took precedence over work that meant the claimant would be more absent than present that week. On Monday and Tuesday of that week the claimant phoned him stating that since his services were not required those days he would report for duty later those days. He acted on his word and later arrived for work. The scenario was somewhat different on Wednesday in that the claimant phoned to *165 say there had been a delay in court proceedings that day and that he would be late in returning to work. This supervisor told him not to bother coming in that day thus excusing him from work.
There was no communication between the claimant and this witness on either Thursday or Friday of that week. On Monday, 10 February this supervisor was on a shift from 16.00 to 23.59. Just prior to finishing that night he met with and had a “short relaxed conversation” with the claimant about his absences on those two days. In apologising for his lack of contact the claimant offered an explanation for his non-attendance at work. Based on that explanation this witness allowed payment to be processed for the claimant for those days. According to the witness this brief exchange was spoken in the presence and earshot of another supervisor.
As part of an investigation into the claimant’s account of those days this supervisor made a written statement on 20 March 2014.
The incoming shift supervisor confirmed to the Tribunal that he overheard the verbal interaction between the claimant and the previous witness on the night on 10 February. Since the claimant’s version was accepted this witness inputted an approved reason for his absence. He also submitted a similarly worded statement as the previous witness again dated 20 March as part of an ongoing investigation. This supervisor insisted that he neither misheard nor misunderstood the claimant’s words and denied acting in any collusive way with his colleague.
An agreement labelled the terms and conditions of employment was in place between the respondent and its hourly paid staff which included among others the claimant. That agreement included references to jury service and disciplinary procedure.
On foot of receiving an investigation report the general manager wrote to the claimant who was under suspension at the time inviting him to a disciplinary hearing. That lengthy letter concluded by asking the recipient to note that a possible sanction against him could include dismissal. That hearing took place on 27 May and three days later he relayed his decision via a detailed letter to the claimant. The general manager told the Tribunal that he looked for mitigating circumstances in this case. That included a previous incident when the claimant notified the respondent of an overpayment to him and subsequent arrangements were made to repay that money.
However, having considered those factors and the totality of the case and deciding what in any sanction to impose this manager opted for dismissal. He justified this on the grounds that claimant had been untruthful and evasive initially and throughout the investigative process about his absences on 6 and 7 February. This misconduct was so serious that in the opinion of the decision-maker the claimant’s behaviour in this case led the respondent to conclude that irreparable damage had occurred in its trust and confidence in the claimant as an employee.
This witness accepted that the jury summons to the claimant was somewhat unclear and had the potential to cause confusion. He added that had the claimant *166 said something different to his supervisor on 10 February then that is “a different story”.
A human resource manager held the claimant’s appeal on 23 June 2014 and wrote to him on 16 July where she formally confirmed the upholding of the respondent’s decision. She dismissed imposing a lesser sanction and in echoing the general manager stated that the claimant had fundamentally breached the necessary trust it had in the claimant as an employee. She based that judgment on the claimant’s inability and unwillingness to be forthcoming and truthful about those disputed absences. His offence lay not in those absences but rather in his continued and misleading version of the reasons for that two-day absence for which he got paid for.
Claimant’s case
The claimant commenced employment with respondent in May 2007 and worked as a general operative in its despatch department. He received a letter from the criminal courts of justice summonsing him to attend those courts on Monday, 3 February 2014 and thereafter from day to day at times directed by the Court. The claimant said he took this to mean that he had to attend all that week up to Friday, 7 February. However, he neither sought nor was given further information or clarification on that summons. The claimant informed the respondent of this summons prior to attending on 3 February. He was rostered to work the day shift that week and advised of the jury duty section in his terms and conditions of employment. Part of that clause read as follows: “Payment will be made for the actual time required by the court. If an employee on reporting for jury duty is not required on a particular day or part of a day, he then must return to work immediately”.
The claimant described as rubbish the contention by a supervisor that he mislead him about his absences on 6 and 7 February. In apologising for not contacting him on those days the claimant offered an explanation for that oversight. This conversation between them on 10 February was conducted in the supervisor’s office and neither another supervisor nor others were permanently present there despite constant callers at that office. It was possible he was clumsy and inaccurate in his explanation and that the supervisor could have misunderstood his comments. The claimant was unable to give a reason to the Tribunal for neglecting to contact the respondent for those two days and accepted it was his mistake for not doing so.
Almost up to the time of his suspension on 24 March the claimant was unaware he was under investigation relating to those absences. Throughout that process and the subsequent disciplinary and appeal process he maintained he neither lied nor was evasive to the respondent about those disputed absences. It certainly was not his intention to defraud or financially gain from those absences and offered to repay all unearned money. The claimant cited his previous experience and *167 behaviour regarding an overpayment from the respondent. He added that apart about another unrelated and contested matter he had an unblemished employment record with the company.
Determination
It is not the Tribunal’s function in this case to determine who said what to whom but rather to determine whether the respondent’s decision to dismiss the claimant was not unfair and that the respondent acted reasonably in the circumstances and in accordance with the legislation. The Tribunal’s unanimous decision is that the sanction imposed on the claimant was misplaced, harsh and disproportionate. According to its agreement with the workforce unauthorised absences can be dealt with in several ways. The Tribunal, in recognising this was not the main reason for the respondent’s decision, nevertheless, notes that it chose its most severe sanction.
It was not necessarily reasonable for the respondent to accept the version promoted by some of its supervisors over that of the muddled version of the claimant. It follows therefore that its decision to dismiss was unreasonable. Unlike the respondent the Tribunal gives the claimant due credit and mitigation to his openness and honesty regarding an earlier scenario involving an over payment.
The Tribunal is mindful that the empanelling of potential jurors for trials in the Circuit Criminal Courts can be a daunting experience especially for members of the public who are undergoing this process for the first time and that orders from the court as to whether members should remain in the precincts of the courts for further possible empanelling or where a jury is absent while legal argument is taking place are required to remain outside the court, where they may be ask to return after legal argument has concluded, can be confusing. This is all the more confusing where a high profile trial is taking place as appears to have occurred in this case.
The respondent was as consistent in its belief that the claimant was untruthful in his account as much as the claimant was consistent in his contention that he did not knowingly and deliberately mislead the company in gaining from his unexplained absences. The claimant’s behaviour in effectively absenting himself without permission contributed to the respondent’s belief he acted contrary to agreed procedures. That belief was reinforced due to his attempts at explaining those absences. Had the claimant been clearer in his explanations and the respondent less certain of its position then a more amicable conclusion might have been reached.
Having heard and considered the adduced evidence and supporting documentation the Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the Tribunal awards the claimant €17,000 as compensation under those Acts.
Brendan O’Callaghan v Dunnes Stores
UD54/2012
Employment Appeals Tribunal
12 March 2014
[2014] 25 E.L.R. 213
Summary of evidence
The respondent operates a large network of retail stores throughout the country selling clothing, groceries and household items.
The claimant started working for the respondent in May 1996 while still at school. Having completed a business course in college he had gone into management with the respondent in late 2001; starting as a trainee manager he worked through various management roles, stores and promotions, ultimately assuming the position of store manager in one of the respondent’s prestigious stores (store M), with a staff of around 30 employees, including managers. The claimant’s drive and initiative was reflected in his annual review. He was an exemplary employee and in later years the respondent involved him in store openings and promotional events. The claimant was considered to be a very good salesman with an excellent sales record.
As the respondent was opening a flagship store (store F) close to store M, on the same street, the claimant’s job was to control the downsizing of store M, the turnover of which was expected to be reduced significantly (by about two thirds). Store M was reduced from two to one and a half floors, around 70 per cent of the experienced staff from store M were transferred to store F, leaving the claimant with 12/13 staff; if he needed extra staff he would have to recruit and train them. The claimant was to control costs and push sales in store M. The respondent’s regional manager (RM) had weekly discussions with him on the store’s sales figures which were compared with the average sales figures for the region.
Under the respondent’s return and exchange policy goods or purchased items bearing the affixed tags and labels can be returned to any store on the production of a valid receipt. The level of refunds in store M was high and RM raised this *215 issue with the claimant at their weekly meetings. The claimant explained that the store was implementing the respondent’s policy but that, being in such close proximity to store F, store M was taking back the majority of its returns. The claimant asked his customer service staff to record the returns/refunds and in one particular week 90% of refunds paid out had been for items purchased other than in store M, the majority of which were purchased in store F. The claimant explained that factors contributing to its high level of refunds were: its close proximity to store F, that store M had a car park, and its customer service facility was located on the first floor while it was on the third floor in store F. Store M was following policy but could not stop the impact of refunds, which was detrimental to his sales figures. RM told him to control refunds but did not tell him how.
On Sunday October 9, 2011 the centre was busy and the claimant decided to open the store for business at around 13.30 rather than the appointed 14.00, to maximise sales. However, the high level of refunds paid out in the extra period of business was high (€300) with only €280 sales) which had the effect of cancelling out the sales made in the same period. The claimant regretted the initiative. If he had not opened early these returns would have gone to store F. He decided to seek refunds from store F on some of the items returned to store M. Shortly after 2.00 p.m. the claimant selected a number of returned items and instructed the customer service till operator to process them as sales; on the claimant’s further instructions employee A returned those items to store F for a refund and returned the refunded money to store M. Around 90 minutes later this process was repeated with employee B returning the items to store F for the refund. The first transaction was for the sum of €131 and the second for €186. The transactions resulted in no financial loss to the store or financial gain for the claimant.
On Monday, October 10, 2011, the security manager from store F informed RM about unusual transactions engaged in by two members of staff from store M on Sunday, October 9, and he invited RM to confirm the incidents from the CCTV footage, the receipts generated and those signed for the refunds. RM recognised the two employees and the receipts showed that the goods, returned and refunded, had been purchased just a few minutes earlier in store M.
The claimant noticed the security manager come to the store on Monday and thought it might be about the refunds. He contacted RM to explain the matter to him but when they met on Tuesday, October 12, RM did not want to discuss the matter with him as it was under investigation.
Two meetings were held on October 13, the first being an investigation meeting, both were conducted by RM with a member of head office security present (HOS) and an assistant manager from store M was with the claimant. The claimant was fully co-operative. He explained that he opened the store early to generate sales. He admitted to the transactions being carried out on his instructions by the three employees, while scanned in for work, without *216 customers being present or any payment being made. He further admitted that his instructions constituted a breach of a number of company procedures. He was very apologetic for putting the three employees’ jobs at risk. He explained that a large refund paid out during the early opening cancelled out any sales made in the same period on October 9. While he had instructed one employee to conceal his uniform and authorised the other to change into her personal clothes, he had not instructed either of them to sign false names and give incorrect addresses for the cash refunds. The claimant thought that the characterisation of the transactions as fraudulent was harsh. He did what he did because he was under pressure to reach sales targets. The claimant viewed the CCTV footage and confirmed the identity of the three employees involved in the transactions. At the end of the meeting the claimant was advised that a disciplinary meeting would be held some 40 minutes later which could result in disciplinary action up to and including dismissal.
At the afternoon meeting RM explained to the claimant that as store manager he was the custodian of the company’s policies and procedures, that it was his responsibility to achieve sales targets and delivery of KPIs within those policies and procedures, that his breach of policies and procedures distorted the store’s KPIs and that he had compromised the position of three staff members by instructing them to carry out false sales and refund transactions which caused operational policies and procedures to be broken. The claimant’s position was that he was sales focused and as he was under pressure to meet his sales targets, he was not thinking clearly on October 9 and he had not gained from the transactions. He referred to his good record. The claimant was suspended on pay pending further investigation. A further disciplinary hearing was arranged for October 24.
On October 14, RM interviewed a number of employees, including the three members of staff involved in the transactions. Employee A and employee B confirmed the claimant’s evidence that it was their own decision and not the claimant’s that they use false names and addresses.
At the disciplinary meeting held on October 24, 2011, although the claimant had already made a full admission, the full charge was put to the claimant and he reiterated his position as stated on October 13. RM outlined to the claimant that his breach of a significant number of policies and procedures including procedures on sales and refund procedures which had a knock-on effect on sales figures, which in turn affected the company’s KPIs. Prior to taking an adjournment to consider the matter, the claimant was advised that disciplinary action up to and including dismissal may be taken. At the resumed meeting RM informed the claimant that his behaviour amounted to gross misconduct. The claimant sought to rely on his 15-year unblemished record during which he always did his best for the company and drove sales. He accepted that what he had done was serious and apologised. RM, noting that no new grounds for consideration had been put forward, dismissed the claimant with immediate effect for significant breaches *217 of policies and procedures and for instructing members of his staff to breach procedures. The dismissal was confirmed by letter the following day.
RM’s position was that the claimant as manager was the custodian of the respondent’s policies and procedures and the respondent was relying on him to deliver those policies and procedures and ensure others followed those procedures but instead he had devised a plan to breach the procedures and instructed three members of his team to breach them. This was grave and serious misconduct. Trust is an important element in the employment relationship and having manipulated sales through fraudulent transactions RM felt he could not trust the claimant in the future. This was deliberate and thought through conduct and not just a foolish act or error of judgment on the claimant’s part and involved other less senior employees.
A regional grocery manager (AM) heard the claimant’s appeal. Her position was that as manager and custodian of the respondent’s policies and procedures it was the claimant’s responsibility to ensure that members of staff complied with those policies and procedures and it was he, as manager, who would have to deal with any breaches of procedures by his staff. A manager is expected to lead by example. AM gave serious consideration to the sanctions as well as to the claimant’s earlier good record and the fact that he had made a full admission. However, breaching the respondent’s procedures and compromising the trustworthiness of a number of employees, answerable to him, amounted to gross misconduct and destroyed the respondent’s trust in him. His position was untenable. The respondent relies on managers to manage and they are never pressed on refunds. The claimant’s appeal failed.
The claimant’s position was that he had a 15-year unblemished record with the respondent. He maintained that RM was pressuring him every week to meet sales targets. On October 9 he had opened the store early to increase sales but that the large level of refunds paid out during the period of early opening had cancelled out the sales in the period. He acted on the spur of the moment and had not thought the matter through. There was no loss to the store or personal financial gain for himself in the transactions and he had made an immediate and full admission. He accepted that what he had done was wrong and apologised. RM denied pressuring the claimant about sales figures in their weekly meetings; he was looking at trends.
The respondent denied that there was a breach of the Data Protection Act. The employees were well aware of the CCTV cameras focused on the customer service desk.
Determination
The claimant contended that in having RM conduct the investigation and disciplinary hearing the respondent’s procedures were flawed and unfair. The Tribunal does not accept that the circumstances of this case were such that *218 having the investigation and disciplinary hearings conducted by the same person (RM) was a flawed and unfair procedure. While there may be cases where fair procedures require that both hearings are conducted by different personnel (see Laffoy J. in Giblin v Irish Life and Permanent Plc [2010] IEHC 36; unreported, High Court, February 10, 2010) this is not such a case. In the instant case, the claimant made an immediate and full admission to the wrongdoing at the investigation meeting on October 13 and the facts of the alleged wrongdoing were not in dispute.
Trust and confidence are essential elements in the employment relationship and a particularly high level of trust and confidence is reposed in a manager. Breaching sales and refunds procedure is serious/gross misconduct but instructing subordinates to engage in fraudulent transactions and compromise their trustworthiness is even more serious. The Tribunal is satisfied that the sanction of dismissal was fair. On the foregoing grounds the claim under the Unfair Dismissals Acts 1977 to 2007, fails.
Section 8 of the Minimum Notice and Terms of Employment Acts 1973 to 2005 provides that there is no entitlement to notice where an employee is dismissed for misconduct. Accordingly, the claim under those Acts fails.
The claim brought under the Organisation of Working Time Act 1997, falls for want of prosecution.
Francis Pacelli v Irish Distillers Limited
UD 571/2001
Employment Appeals Tribunal
23 January 2003
[2004] 15 E.L.R. 25
Respondent’s case
The general manager of the respondent’s bottling plant in his evidence to the Tribunal said that the company had been experiencing stock losses during 1999 *28 and 2000. Having investigated internally it became apparent that stock was leaving the plant and it was decided to bring in a private investigator. Video evidence was presented to the Tribunal, which showed the procedure involved in preparing goods for delivery, which involved the claimant in his position as loader. The cases of the product are counted electronically and placed on a conveyor and from there onto a truck. If two cases are together they are counted as one and on this occasion this appeared to have happened three times resulting in 211 cases going onto the truck and three to a private house at Spiddal Road. The company was not paid for these three cases.
On April 5, 2001 a meeting was held with the claimant and his union representative and it was put to him that there were stock losses and instances of over-loading in which he was involved. He was suspended with full pay and a further meeting was held on April 12, 2001 where he was asked if he could give an explanation and whether he had any knowledge of the counters being interfered with or of double loading. It was put to him whether he actually double loaded and he said that he might have. He was also asked whether there might have been intimidation involved and he did not remember. Witness again met with the claimant on April 17, 2001 and he was dismissed on April 18, 2001 as it was felt there was a complete breach of trust. Another employee was also dismissed and it was stated that there might possibly have been others involved. The supervisors were also questioned but they denied any knowledge of the missing stock.
The general manager in cross-examination told the Tribunal the reason he dismissed the claimant was due to loss of trust in the claimant as an employee. On two occasions delivery trucks were found to be overloaded. The claimant was also dismissed for interfering with the lock sometime in February 2000. The overloading of trucks impacted on stock loss in January 2000. He reiterated that there was evidence of overloading on two occasions. The claimant loaded trucks every day. The general manager made an assumption based on two incidents. The claimant was responsible for 5200 cases. The general manager dismissed one other employee in the company. He met a former employee of the company who bad been suspended in the presence of a shop steward. The purpose of the meeting was to establish if this employee could give any other information about stock.
As far as he could recall he did not discuss the claimant’s involvement at this meeting. The claimant’s name was mentioned as he was trying to gather evidence. There was a cloud of suspicion over the suspended employee. There was significant stock losses on 6000 cases. The suspended employee was distraught. The general manager asked the suspended employee was he aware of where the product was going. This employee denied any involvement. The suspended employee and the claimant shared the role of loading trucks. During 2000 there were losses of 2700 cases and in 2001 there were losses of 2500 *29 cases. The general manager looked at video footage in excess of 20 hours but not less than 50 hours. He reviewed some videos, probably 10 or 12, as were the subject of the investigation. On different days there was product delivered to non-customers. There was overloading on both days. He looked at random video footage in tape previously with his colleagues. He had no other evidence other than the two instances that linked the claimant to the stock loss. Separate evidence linked the dismissed employee to the stock losses. When asked if he took the view that the claimant was involved in stealing 5200 cases on two short pieces of evidence he said yes, that the claimant overloaded two trucks and that product was not delivered to their customers.
The two videos were dated February 7 and February 13. In relation to 199 cases on February 7, the respondent when asked if the claimant offered any explanation for this, the respondent said whatever was loaded was on the docket. The level of breakages at loading varied. If a case fell to the ground it was reworked out of the warehouse. Breakages were not counted as being a loss. Breakages occurred in the warehouse during picking up product, loading and delivery. 200 cases went to a truck. If a breakage occurred the driver informed the loader and the case was replaced. If there was a replacement an extra case was placed on the counter. The supervisor did not check every load. The cases were randomly checked. When questioned that the video did not show the location of the checker, the general manager could not recall. It was parallel with the incline conveyor. The supervisor stood at a particular position. If there was a checker he could stand at the supervisor’s office. The claimant could see the case count. The counter was reset at each load. The load then reset the counter but a supervisor was not always present. The case counter did not always have to be counter checked. The key for the counter was there for loading. The general manager’s instructions were to check occasional loads, verify that the total on the loading documents were similar to those on the case counter.
If a driver lifted a case off the truck and a bottle broke this was entirely explicable with no admission of wrongdoing. He said the only link to the claimants documents and videos was that he was a total stranger to what was going on in the car park. The claimant said there was a leakage of two litres of Huzzar on February 7. The general manager could not recall if one of the 199 bottles was leaking. He recalled that, the first document had 198 but he had seen 199 loaded. When questioned if it was up to the driver to check this, the general manager said he did not accept this. He was not aware of lines of demarcation between loaders and truckers. The claimant said how could he not go into a truck. In the year 2000 he discussed stock losses with the claimant. The claimant said there were problems with breakages. If a breakage occurred he would replace it. He said that breakages and leakages were reworked.
In the past year all domestic loads are checked. Every case is counter *30 checked. Paperwork is delivered to drivers, loaders and checkers. The supervisor has final authority and will get into a truck if he has to. One load per day is randomly supervised prior to the stock number check. One or two incidents where discrepancies were identified were fully investigated. The first instance of overloading in his recollection was when a driver said he had an extra load with one additional case. The claimant always ticked off what went on to the lorry. The case would not match a load if a supplementary docket were included. A supplementary docket was placed on an order when a late urgent order came in. The load routing was prepared on the previous day and it would not appear on a loading docket.
He could not think of a reason why a driver might put more on a truck, than was on the order. He was not aware that this was happening. If he became aware of this he would have said that this was not acceptable. He was aware that drivers would swop deliveries. On one occasion a load in excess was delivered. Both loads had the correct delivery documents. Customs and Excise had stipulated location basis. The way that personnel operated in the warehouse was complex, they could not open the warehouse. All stock incoming and outgoing were of a very high standard. The main factor in the dismissing of the claimant was overloading on two occasions. Failure to get the warehouse open would not have been a primary factor in dismissal. Due to the outside factor of Customs and Excise they we not in control of their own destiny.
Seven or eight employees had access to warehouse number three. In response to questions that the claimant had moved a camera in the warehouse, the general manager said, “I have told the whole truth, I am giving correct answers as far as I can recall”. The claimant denied moving the camera. He interviewed drivers and everyone else in relation to the moving of the camera. He kept no specific notes of these interviews. The general manager said the existence of letters of intimidation would not have been a primary factor in dismissal. It would have been a very minor factor. The company did not accuse the claimant of taking alcohol. He said that the suspended employee did not give him information.
A private investigator in evidence told the Tribunal he surveyed a truck, belonging to the respondent company at the Fox and Geese premises on February 7, 2001 at 07.00. He saw a truck in Parnell Street, Abbey Street and Northside shopping centre. At 15.25 he went to Spiddal Road Ballyfermot. At 15.26 a helper got out of the truck. He followed the truck to the respondent company headquarters. On the February 13, 2001 the private investigator observed a truck belonging to the respondent company at Essex Street, Temple Bar and at 13.55 at Spiddal Road, Ballyfermot. At 13.55 the helper took two boxes and put them into the boot. The driver took one box and drove off in the truck. Two boxes went into a car. The driver drove away and the helper went into a house.
*31
In cross-examination the private investigator said he followed the same truck between the February 7, 2001 and February 13, 2001. He said when the helper got out of the truck he could not see the product. He said he saw two drop-offs on two to three loads. He said his instructions were to monitor deliveries. Deliveries were dropped off by hand at Morrison Hotel. The truck then stopped at Zanzibar’s in the city centre at 10.16. One box was delivered by hand. He said he was not sure who owned the house at Spiddal Road. He said as far as he was aware a helper employed by the company lived at Spiddal Road.
On February 13, 2001 he went to Jury’s Inn at 09.09. He saw product being taken from the truck. The driver took one box from the truck and put it into the at 15.04. He said on April 5, 2001 he stopped at Spiddal Road at 17.00. He said at 17.06 a helper lifted two boxes into the house. Between February and April 2001 there was constant monitoring of the truck. He said the driver/helper was the same person.
The director of human resources in sworn evidence told the Tribunal he had meetings with the claimant on April 12, 2001 and April 17, 2001. He said he give the minutes of those meetings to his secretary to type. He said there was no confusion in relation to the cases of 208 and 211. He said there was 211 plus three in excess. He had no query in his mind about this. The issue at stake was three cases in excess. On the April 16, 2001 he had a meeting and taped evidence was offered to both the individuals concerned. He never watched a video in the presence of the claimant. The reason for surveillance was that the company was suffering serious stock losses and product was clearly going amiss. The company was not in a position to ascertain whether the link was internal or external. Surveillance was introduced randomly in January 2001. Some of their own company lorries and external lorries were under surveillance to see if anything was happening. He said on February 7, 2001 and February 13, 2001 two days’ loads were delivered in full. One of the days, product was returned but completed the following day. The camera was in the warehouse four years before he commenced employment with the company. The camera was quite discreet. It was an aperture the size of an old 50p. It was a closed circuit camera, which was not permanently monitored. The tapes were carefully examined and they demonstrated excess loss of one case. On February 13, 2001 there was excess loading.
There was a telescopic arm on the end of the conveyor of about 15 to 20 feet. This was not a standard aperture. He said it would not be usual activity to have a case fall off. He had three meetings with the claimant on April 5, April 12 and April 17, 2001. On April 12 the issues raised were that the company were of the view that loads in excess were being moved on to the trucks. There was no definite explanation from the claimant regarding breakers and leakers. The case counter referred to the whole area as to whether it concerned anybody *32 internally or externally. On April 17, 2001 a similar position was put to the claimant. On February 13, 2001 three cases in excess were loaded and ended up in a private car. On occasion product in excess may go out and a supplementary docket was given on a separate sheet. The company did not deliver to private dwellings but on occasions they deliver to private residences bona fide.
In cross-examination the director of human resources said the first version of the minutes of the meeting on April 12, 2001 were typed by his secretary. His recollection was that 208 were required and 211 were loaded. He said in relation to a note of the meeting, 211 should not read 214. He said 214 were never loaded. He said the minute should say 211. Counsel said he had to take instructions on every line. In relation to the meeting of April 5, 2001 it was a very short meeting, which he did not attend. He saw video footage of cases being delivered to Spiddal Road. He had no personal knowledge of this. It was clear from video evidence that the claimant took plastic product quite openly. He was not aware that the claimant had been given permission to take this. In relation to interference with the lock, his recollection was that the lock was fixed on the gate. The code can be changed and reused. This gate leads into the warehouse where the claimant worked. There was video evidence that the claimant interfered with the lock. Supervisors and management had access to this area. The claimant had no reason to have access to the lock. The only reason anyone would interfere with the key would be due to an illicit nature. When he locked the area the camera looked directly at the workstation. The camera was moved in November, which is the busiest period. The company had the maximum stock in the warehouse at this time. The camera was not moved back to the correct position until the New Year. He assumed it was the security manager who did this. A camera might run for 12 hours and he did not check to see if the tape was changed on a daily basis. Tapes were inspected on a random basis. It would not be unusual to review tapes 15 to 20 hours previously. On specific dates the video was reviewed but this was a fruitless exercise. He accepted that videotape does not show case count.
Counsel for the claimant said there were enormous inconsistencies between the written notes and the typed versions. The respondent said he rejected the statement that he was determined to fire the claimant. He outlined in his note of dismissal that there was breach of trust. There were stock losses. He sought a satisfactory explanation but he did not get one. He interviewed a significant proportion of employees and was satisfied that there was a level of intimidation going on.
The director of human resources said in his view if someone is guilty of breach of trust, this is a dismissible offence. There was gross intimidation of two supervisors and the claimant felt intimidated. The main incident that arose was overloading. In relation to another employee of the company counsel for the claimant said that a statement he made is relevant. The director of human *33 resources said it was not his view that there was no interference of stock. He made his decision to dismiss the claimant on April 17, 2001.
Claimant’s case
The claimant in sworn evidence told the Tribunal he is 47 years old. He commenced employment with the respondent company in October 1973 when he was 18. His mother worked there and she got him the job. He said he did not co-operate with a criminal element involved in stealing. Initially he worked in the back area bottling and six years later he went to work in the loading bay. He had an unblemished record. The company did not always welcome people who stand up for their rights.
In 1999 the company employed a new logistics manager. This manager made a few changes. In January 2000 the keys to the gate, which the claimant had responsibility for over the past 16 years were taken from him. Another employee was given responsibility for this and all breakages were to be dealt with by this employee also. Up to the time the keys were taken off him he was in control. There were never any complaints about missing stock. The warehouse manager would cheek the computer and would inform employees if stocks were up or down. The reason the keys were taken from him was for security reasons. Seven drivers were employed and about 10 truckloads were delivered every day. Two employees loaded the truck on a daily basis. The drivers would pick up the summary sheet from the office. The load was placed in sequence in the truck according to size, e.g. “half battle, naggin and baby power”. This was discussed with the driver. The only way to gain access to the loading bay was by knowing the code number for the lock. The respondent company would have known that eight out of 10 times the gate was open all morning.
The claimant started loading stock in 1979–80 and during the next 20 years he was never accused of wrongdoing nor was there any suggestion of stock going missing. By 2000 he was a supervisor and was responsible for checking loads. Loading started at 08.00 and all trucks were generally on the road by 10.00. A computerised counting system was introduced around this time and the claimant explained how discrepancies could arise between what was actually loaded and what was counted. These included breakages, alternating of numbers for practical convenience, double counting and swooping of routes among drivers. He added that the management disregarded these reasons.
The claimant did not see video evidence during the meeting of April 5 and 12, 2001 and was already dismissed when a video recording was offered to him. During those meetings he denied involvement in missing stock. The claimant pointed out that it was very difficult to reach the video camera due to its position and that he never interfered with the video camera. He also said that an instrument at the end of the counter does not always stop the stock nor does it always count the cases accurately. This resulted in cases being backed up *34 which could distort the count. From early 2001 management intensified the checking of stock and as a consequence he was questioned about differences in levels.
The claimant believed that management had its mind made up to deal with him. He referred to an earlier dispute with the respondent and thought that maybe this was linked to his dismissal. He denied intimidating or threatening any of the employees but admitted taking plastic products which he knew was the property of the respondent but felt he had permission to do this. He insisted that he never facilitated the illegal disposal of stock.
The claimant accepted that he did not have an unblemished record with the respondent but did not recall all the warnings given to him. Reference was made to an accident claim but he dropped this claim later.
A union official said that there was generally a good working relationship between management of the respondent and other staff. She indicated that there were still some outstanding issues to be resolved. She was present for some of the meetings mentioned earlier and said they were conducted fairly but the conclusion reached was unfair. The evidence presented was inconclusive and the case against the claimant remained unproven. She acknowledged that loss of stock occurred but this loss could not be solely attributed to the dismissed employees, one of whom was the claimant. According to this witness there was some doubt over the documentation used over the loading process relating to the claimant.
A warehouse stock controller and supervisor said he never saw wrongdoing in the warehouse but was aware that cases had been constantly disappearing. He was unable to explain this disappearance citing possible human error but said that the new computerised system should prevent this. In January/February 2001 random checks on loading involved checking different staff and vehicles. The witness was conscience not to be seen as being unfair. The claimant resented at times all this checking and asked to be left alone but the witness advised him that loads and not personnel were being checked. Most long serving employees objected to these changes.
This witness explained the document used in loading and a copy each was given to the driver, the claimant, and a third copy was kept on the premises. He would be present during loading but would move from one loading operation to the next. He could reset the case counter but everyone involved knew that this counter might not be reliable. There were several reasons and instances where cases could be miscalculated but eventually they all had to be accounted for. The witness had no reason not to trust any of the staff involved and added that the claimant seldom entered trucks. The accuracy of a load relied upon the work of a loader, picker, and driver.
This supervisor had a further meeting with management after the claimants dismissal and commented that a senior manager indicated there that the claimant *35 was dismissed on circumstantial evidence.
Determination
The right to work is among the unspecified personal rights in the Constitution. In State (Gleeson) v Minister for Defence and Attorney General [1976] IR 210, Walsh J stated that “To the right to work may be added the right to continue to earn a livelihood which can be taken away or forfeited only if the procedure followed is clearly lawful. Hence lawfulness of procedures or basic fairness of procedures is due, it may be argued, to all employees under the Constitution”.
Section 6(1) of the Unfair Dismissals Act 1977 provides that “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”. Moreover, section 6(4) provides that:
Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
The concept of fairness of procedures is judged by the objective test. “Fairness” cannot be stretched to facilitate or support a proposition which, having regard to the circumstances, warrants a certain sympathy on a moralistic front but legalistically must fail when one considers the merits of the case. The Tribunal must be impartial and this impartiality must be real and beyond question. The Tribunal’s function is to determine the issue on the basis of what it believes a reasonable, prudent and wise employer would have done having regard to the nature of the case. In Bunyan v. UDT (lreland) Ltd. [1982] ILRM 404 at p. 413, it was held that:
… the fairness or unfairness of the dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circum *36 stances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not on evidence before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.
All employees are entitled to fairness of procedures irrespective of their standing or status in an organisation, company, association, etc. McCarthy J in Gunn v National College of Art and Design [1990] 2 IR 168 at 183, emphasised that the principles of fairness of procedures and constitutional justice are not the monopoly of any particular class. The importance and significance of employment to workers ranks higher than the esoteric terms in the rules and regulations appertaining in the employment contract. Walsh J in the Gunn case stated that (at 181):
There is one other matter I wish to refer to in order to clear up what appears to be a misapprehension concerning the application of the rules of natural justice or of constitutional justice. The application of these rules does not depend upon whether the person concerned is an officer-holder as distinct from being an employee of some other kind …. The quality of justice does not depend on such distinctions … In any case where there is no particular procedure prescribed either by agreement between the parties or by statute and where the case falls to be determined by the application of the principles of natural justice, they are applicable without regard to the status of the person entitled to benefit from them.
In relation to the application of fairness of procedures and the actual test to be employed when faced with misconduct and/or dishonesty, the Tribunal in the past has held in the case of Looney & Co Ltd v Looney (UD 843/1984) that:
It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.
It is a prerequisite to any dismissal to conduct an investigation and such an *37 investigation should have regard to all the facts, issues and circumstances surrounding a case warranting serious chastisement or reprimand, such as dismissal. This Tribunal does not have the remit of determining guilt or innocence but rather is empowered to determine the fairness or unfairness of a dismissal. It does so on the evidence presented and in some cases, as in this one, upon the submissions, written in this case, from the parties in relation to assessing the evidence advanced in respect of both claimant and respondent. The facts of this case has been outlined in sufficient detail to obviate the Tribunal recounting the same in the determination. However, it must be stated that the respective positions of the parties in relation to the evidence are in direct conflict with each other.
The crux of this case surrounds the actual investigation of the matters complained of and the conclusions that were reached by the respondent having conducted the investigation and whether the employer had an honest belief or suspicion of the claimant’s involvement. It is submitted by the claimant that the investigation did not indicate or disclose any involvement of the claimant and that the investigation was neither full, fair nor reasonable. The Tribunal is satisfied that the investigation by the respondent company was thorough and fair in the circumstances. If product goes missing or there are stock-shortages the respondent company must pay duty on such missing product, and the monetary amounts involved may be considerable. Therefore, the respondent had a duty to curtail losses which impact upon profitability and ultimately deprive its shareholders of their rightful dividend, given and having regard to the penalties, attached by way of custom duties, to patrol, monitor and investigate shortages in an effort to contain the same, and also to effectively prevent and detect practices which fundamentally depart from the standard practice in the company which could lead to the misappropriation and/or thievery of product. It is in the latter objective, which underlies the ostensible authority of an officer of the company, in appropriate circumstances and, in an appropriate manner, to approach a person for the purposes of investigating questionable behaviour. Likewise, the company is empowered to install machinery and equipment which will deter or at least monitor offensive behaviour or misconduct.
In the instant case, there is nothing unusual about normal stock shortages or case-counters failing to record the load accurately. Nor is there anything suspicious about people placing two cases on a conveyor belt in tandem to each other rendering the under recording of one of the cases. Delivery trucks being overloaded is a feature of human error and of commercial existence, it should not happen but it does. Somewhat less excusable acts may be deliveries to non-customers and non-deliveries to customers; and the interference with cameras which are outside of the natural ambit of accidental interference is certainly suspicious. The taking of company stationery or such items may or may not be a serious offence; in the instant case it was stated that the claimant *38 had taken plastic packaging but the claimant stated that he had authority so to do. However, the story is quite different where, as here, the claimant is a factor of the equation on a number, if not all, occasions of questionable happenings and practices. It is nothing short of sheer torture of logic to suggest that the claimant has not at least a case to answer. We therefore reject the proposition that the claimant was singled out for investigation in relation to the product shortages as was a certain other individual. A suspicion is well founded by a preponderance of evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence (actual quantifiable loss of product), exists in the mind or the minds of the officers of the company who are investigating misconduct.
The Tribunal accepts that where an officer of a company suspects unusual conduct amounting to malpractice, criminal activity or unacceptable behaviour happening, he may question the person or persons, with a view of identifying the offender or offenders; questioning itself cannot be said to implicate the party being questioned as that party has an obligation to the company to assist it with its enquiries. Employees have a duty to assist management in their investigations: Sim v Ratherham BC [1986] IRLR 391. Lord Justice Roskill in Secretary of State for Employment v ASLEF [1972] ICL 19, had no hesitation in implying a term into the contract of service that each employee will not, in obeying his lawful instructions, work to obey them in a wholly unreasonable way which has the effect of disrupting the system, the efficient running of which he is employed to ensure. During the course of an investigation, the officer of a company or the management, may establish that certain happenings did occur but that they cannot conclusively say whether or not certain individuals participated in the matter. He may know that it could only be one of two people, can he dismiss either or both or must he leave well enough alone?
In the instant case the Tribunal believes, for the reasons set out hereinafter and on the evidence before it that the respondent had solid, sensible grounds for suspecting the claimant as well as another individual of involvement in the stock shortages; shortages which were significant, and both the claimant and the other person were dismissed.
The claimant in the instant case cannot be said to have been responsible for the shortages with scientific certainty. No. Accordingly, it is incumbent upon the Tribunal to state the manner in which it assessed the evidence. This exercise must be carried out to do justice to both sides and to give reasons for its determination.
If management have a reasonable suspicion of a person or persons involved in misconduct it must investigate the matter to identify the offending party. This may not be possible in all cases as parties to misconduct are unlikely to admit their involvement. In the event that the culprit or person or persons cannot be identified with certainty, management have an obligation to satisfy them *39 selves that there exists reasonable evidence of a person’s involvement in the behaviour which warrants dismissal. Secondly, where the behaviour can only be attributed to a finite number of persons, management is afforded reasonable evidence of a persons participation in the offensive conduct, in the absence of explanations by the persons subjected to the inquiry and/or investigation.
In the instant matter the Tribunal is satisfied that the respondent company conducted a thorough investigation, both internally and externally, with the help and assistance of a private investigator. The evidence of the respondent company has been articulated above. The Tribunal notes the unhelpfulness of the claimant at the interviews/investigations that were held to investigate the matters of stock-shortages. At a meeting held on April 12, 2001 at around 11.40 the claimant adopted a hostile position and requested dates in relation to certain matters that were put to him. The claimant was asked at out the issue of overloading and deliveries to a certain residence. His response was that any evidence that the company had was hearsay and that was no evidence. The evidence was outlined to the claimant enumerating the number of boxes of product which had been overloaded and it was stated that notwithstanding this all procedures seemed to be in order. The claimant’s response was canvassed and he merely replied “you prove” and passed some remark that the investigation was some kind of “kangaroo court”. The claimant stated at this interview that the company had no proof to attach any blame to him and the Tribunal believes that it did not require such proof but rather a reasonable suspicion that the claimant had a case to answer. At a subsequent interview on April 17, 2001 the claimant told the company that he was not walking away after 27 years without anything.
The conduct of the claimant and the position he adopted at the interviews that were held can be described as less than helpful on the one hand and total defiance on the other hand. Mr Stewart, SC, became frustrated with the manner in which the claimant answered his questions and the cross-examination of the claimant was somewhat brief. The claimant had stated in evidence that he had an unblemished record with the company and Mr Stewart put it to him that he was not telling the truth. On previous occasions the company had to confront the claimant in relation to his conduct and performance and on one of those occasions, more particularly on September 30, 1988, the company by way of letter of even date, had stated to the claimant that:
You made a statement at Wednesday’s union/company meeting to the effect that you would pilfer bottles from the Company.
We regard that statement as being very serious and we therefore requested an explanation from you today.
You say that you would never steal or pilfer anything from the company and your statement at Wednesday’s meeting was not intended.
*40 The Tribunal cannot place must weight on this statement. We do not know the context in which it was said nor if there ever existed a deliberate intent to exercise such a threat; the factual matrix surrounding the utterance is a complete mystery to the Tribunal. However, the Tribunal was not impressed with the demeanour of the witness under cross-examination. The claimant may have felt that he scored a victory in short-circuiting cross-examination but the reality was far from victorious. The demeanour of the claimant and/or a witness is an important factor in assessing the evidence. Learned Hand, Circuit Judge, in Dyer v MacDougall 201 F.2d 265 (1952); a civil action involving slanderous utterances, stated that:
It is true that the carriage, behaviour, bearing, manner and appearance of a witness — in short, his “demeanour” — is a part of the evidence. The words used are by no means all that we rely on in making up our minds about the truth of a question that arises in our ordinary affairs, and it is abundantly settled that a jury is as little confined to them as we are. They may, and indeed they should take into consideration the whole nexus of sense impressions which they get from a witness. This we have again and again declared, and have rested our affirmance of findings of fact of a judge, or of a jury, on the hypothesis that this part of the evidence may have turned the scale. Moreover, such evidence may satisfy the Tribunal, not only that the witness testimony is not true, but that the truth is the opposite of his story; for denial of one, who has a motive to deny, may be uttered with much hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.
In the instant case, the facts in issue and dispute relate to conduct. The conduct or misconduct does not have to constitute a major or minor departure from acceptable standard practice. The nature and extent of the departure is one element and its impact on the employment relationship is another. It might possibly be imagined that some precise definition could readily be given, or some test be applied, whereby the more serious misconduct, namely gross misconduct might be at once marked out and distinguished alike from minor infringements and dismissible behaviour. The Tribunal believes that the assessment of the conduct and whether or not that amounts to gross misconduct, rests with the employer, however, the employer must act reasonably and prudently in qualifying conduct as amounting to a trivial departure from standards and gross misconduct, together with consistency in indiscriminately enforcing penalties for breaches thereof in accordance with its practices and procedures no matter who the person is or the position he holds in the company.
It is the nature and quality of the conduct and not its consequences which *41 renders the conduct either serious or trifling. According to Kenny J in Glover v BLN Ltd. [1971] IR 388 at 405:
It is impossible to define the misconduct which justifies immediate dismissal … There is no fixed rule of law defining the degree of misconduct which justify dismissal … What is or is not misconduct must be decided in each case without the assistance of a definition or a general rule. Similarly all that one can say about serious misconduct is that it is misconduct which the court regards as being grave and deliberate. And the standards to be applied in deciding the matter are those of men and not of angels.
In Shan v Croydon AHA (1975) 13630/75/D (Eng.), a doctor was held to be properly dismissed after a minor shop-lifting conviction. Moreover, in Moore v C & A [1981] IRLR 71, a store section leader was held to have been fairly dismissed for alleged shoplifting in another store.
At one stage it was thought that a thing was not stealable in law unless had or has value, viz. de minimis non curat lex. Fanciful ideas were floated by the bench in reaching decisions on the value of items, for they said that value must be of some appreciable amount otherwise a crime would be committed if one was to dip one’s pen in another man’s inkwell. However, in Caroline v Smith & Nephew Southhalls (lrl) Ltd, UD 542/1984, it was held that the amount of the product taken is irrelevant. So in Dykyj v Barnet Area Health Authority (1981) 24621/81/LN, a nurse was held fairly dismissed for the theft of a packet of cigarettes from a patient, and in Brown v Portsmouth & SE Hampsire Health Authority (1983) 21788/83, a kitchen superintendent’s dismissal for theft of fifty pence worth of vegetables was likewise upheld to be fair.
In the instant case the respondent company viewed the stock-shortages, amongst other matters, as a serious offence. They are satisfied that two persons were involved. They firmly believed that these two persons were involved in the stock-shortages in some manner of form. Their belief was stronger than a “reasonable suspicion”. In circumstances such as these the liability to mistake maut necessarily be greater where the actual identity of the culprits is a matter of deduction than where it is the subject of direct and certain evidence. If the available evidence is such as to confine suspicion to certain persons and justifies limiting the range of inquiry to a class of persons or a group of persons by virtue of a mass of coincidences and it is impossible not to arrive at the conclusion that those persons must be connected in some way the company is entitled to form a reasonable belief of their involvement. The Tribunal is satisfied that the respondent company conducted a far reaching, fair and proper investigation of the malpractices associated with the stock-shortages which were taken place upon their premises. The Tribunal cannot go behind the statement of the respondent company (in the absence of proof of bad faith or malice) that it had *42 a reasonable belief founded upon a reasonable suspicion. However, if prima facie grounds could be established for the proposition that the company, or any company, could not have been so satisfied, the Tribunal will be and is, entitled to hold the dismissal ensuing to be unfair and invalid unless the company itself persuades the Tribunal that it did in fact genuinely form the opinion and suspicion which it claims to have held.
In the instant case the claimant was on duty when a number of questionable happenings or occurrences took place within his precinct of the company warehouse, namely:
• Stock losses occurring on his shift.
• Case-counter failing to record transactions accurately.
• Two cases being placed parallel to each other on conveyor-belt thus forcing the electronic counter to record one case.
• Locks on certain gates being interfered with.
• Deliveries to non-customers and non-deliveries to bona fide customers.
• Interference with the closed circuit camera monitoring system.
• Trucks being loaded in excess of the requisitions.
• Company product going missing.
• Company packaging being taken by claimant (this was said to have been authorised by his supervisor).
The claimant did not address the issues when they were put to him at the two interviews that were held. His response essentially was “prove it”. The claimant, deliberately and consciously failed to give an adequate explanation of the inordinate circumstances which were present whilst he was on duty. The claimant was given every opportunity to explain the irregular events and goings-on in the warehouse. The Tribunal in determining this appeal must look at the substance of the complaint and beyond mere defects of form. Lavery J in O’Mahony v Arklow UDC [1965] IR 710 at 735, held that the court should not, and in the respectful opinion of this Tribunal, the Tribunal should not:
… parse and construe rules of procedure, in a narrow and unreal way, looking for some flaw in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed.
The happenings and/or occurrences are in such number as to warrant and dictate a proper and adequate explanation, from the claimant as they occurred when he was on duty and took place within his precinct of the company premises; to hold otherwise would be to defy logic. Pollock, Chief Baron, in R. v Exall (1866) 4 F. & F. 922 *43 at 929, in relation to a preponderance of related happenings, stated:
It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link break, the chain would fall. It is more like the case of a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite sufficient strength. Thus it may be in circumstantial evidence — there may be a combination of circumstances, no one of which would raise a reasonable conviction (that is, belief) or more than a mere suspicion; but the three taken together may create a conclusion of guilt with as much certainty as human affairs can require or admit of.
The Tribunal is conscious of the fact that when persons are participating in under-handed activity the participants employ such measures as to thwart detection. In the instant case, it is not for the Tribunal to say whether or not the claimant was in fact guilty of any or all the happenings: Hennessy v Read & Write Shop Ltd (UD 192/1978). No, the matter before the Tribunal is much narrower than that; viz. did the respondent company act fairly, properly and justly in reaching it decision to dismiss the claimant? The test of “reasonableness” was set out in Noritake (Irl) Ltd v Kenna (UD 88/1983), namely:
1. Did the company believe that the employee mis-conducted himself as alleged: If so,
2. Did the company have reasonable grounds to sustain that belief? If so,
3. Was the penalty of dismissal proportionate to the alleged mis-conduct?
The circumstances in the instant case, by remarkable coincidence, are capable of supporting a suspicion with more than reasonable accuracy, and accordingly, on the above test, the Tribunal finds that the respondent company acted fairly and having regard to the grave nature of the misconduct the penalty was proportionate thereto. An extensive investigation was mounted into, inter alia, stock-shortages, an outside investigator was retained to assist in this investigation. When the evidence was complied, such as it was, and the respondent company established reasonable grounds for believing certain employees had been involved, it was promptly put to the claimant and another individual: Marley v Dutton [1981] IRLR 380. The employees, including the claimant, were given. every opportunity to explain their version of events, the claimant chose not to so do, Thomas v Budgen [1975] IRLR 201; Scottish Special Housing Association v Cooke [1979] IRLR 264. *44
In Hubbard v McMullen & Gilbea Ltd (UD 580/83) the Tribunal held that where it was virtually certain that serious theft had been committed by one or more of a number of employees and it was impossible, despite a thorough investigation, to identify the culprit or culprits with precision, then the company acted fairly in dismissing the claimant on grounds of a “reasonable suspicion”. In the UK an employer who cannot establish which of several employees was the thief may fairly dismiss all or several of those suspected: Whitbread v Thomas [1988] IRLR 43. In BHS v Burchell [1978] IRLR 379, the Tribunal held that where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, the criteria to be applied regarding the fairness or otherwise of such a dismissal is whether or not the employer entertained a reasonable suspicion, amounting to a belief in the guilt of the employee of the misconduct in question at the time of the dismissal. If there exists “solid, sensible grounds for suspicion” the employer is deemed to have acted fairly: Scottish Special Housing Association v Linnen [1979] IRLR 265. Moreover, where a prosecution is followed by an acquittal, the employer does not thereupon become liable for unfair dismissal: Refund Rentals v McDermott [1977] IRLR 59. The question is always whether the employer had reasonable grounds at the time of the dismissal for believing the employee guilty: Weddell v Topper [1980] ICR, CA.
Having regard to the evidence the Tribunal is satisfied that the respondent company carried out a thorough investigation. Furthermore, that it had a reasonable belief and suspicion that the claimant was involved and that grounds existed to support such an honest belief in the absence of an adequate explanation from the claimant. Accordingly, the Tribunal finds that the dismissal was not unfair in that having regard to all the circumstances, there were substantial grounds justifying the dismissal. The Tribunal stresses, and it is important to so stress, that the Tribunal makes no finding in relation to whether or not the claimant was guilty or innocent charges put to him but rather that the company honestly held such a belief which justified the course of action taken by the company.
Accordingly, the Tribunal dismisses this appeal and affirms the decision of the Rights Commissioner.
Division of the Tribunal: Mr T. Halpin (Chairperson), P. McKeown , P. Harrington
Mary Sheehy v Laurence Ryan and James Moriarty
2002 No. 10338P
High Court
3 February 2004
[2004] 15 E.L.R. 87
(Carroll J)
3
CARROLL J
delivered her judgment on February 3, 2004, saying: The plaintiff was first employed by Bishop Lennon of the Diocese of Kildare and Leighlin as the bishop’s secretary on July 29, 1974. At the time she was employed by Carlow Vocational Educational Committee as senior administrator in the Regional Technical College at the grade of clerical officer. She had been there since March 1971. There was no written contract of employment.
The diocesan secretary at the time was Fr Waldron. He fell ill and died in 1977. Bishop Lennon then appointed the plaintiff as diocesan secretary in his place. Bishop Lennon retired in December 1987 and was succeeded by Bishop Ryan, the first named defendant. The plaintiff was concerned that there was no written record of the terms of her employment. She asked Bishop Lennon to produce a document setting out the terms. In a written document in his handwriting it is stated as follows (omitting deletions he made).
In July 1974, I engaged Mary C. Sheehy as my Secretary. During the previous month I had preliminary discussions with her and outlined the conditions of employment. At the time she had a permanent post in the Regional College Carlow and I was concerned that she should not be at any loss by accepting my offer.
Conditions Offered
1. Salary —to be linked with the salary of her existing post in the Regional College and with the annual increment of that post.
2. Pension — provision to be made.
3. Hours: 10 a.m. to 5 p.m. — with a luncheon break 1–2 p.m. from Monday to Friday.
4. Holidays — same as in her Regional College post with the addition of Church Holy days and an extra week at Christmas and Easter.
5. Duties: In answer to her specific question I assured her that her function would be far wider than that of a typist, and that I expected her to grow into the work so that she could, under my directions, take on the full management of the diocesan office.
Over the years her duties came to include: *90
(a) Diocesan correspondence.
(b) Keeping of records and recovery of information as requested; searching the diocesan archives (incomplete and scrappy) (as time allows) and trying to put them in order.
(c) Answering enquiries and dealing with requests which did not need consultation.
(d) Arranging appointments with the bishop for priests and people.
(e) Management of diocesan finances, bank accounts, investments, etc., under my direction.
In 1977 as she was already doing the work, I appointed her as diocesan secretary.
As the plaintiff’s salary arrangements were not very clear Bishop Ryan increased her salary.
Bishop Ryan sought over the years to agree appropriate pension arrangements with the plaintiff. There was a fund (Fund 49) set up by Bishop Lennon as pension provision for the plaintiff and some others, who had since died, which could have been liable to tax, so pension arrangements were incomplete.
In 1998, Fr Bill Kemmy was appointed Chancellor and part-time diocesan secretary in succession to Fr Thomas McDonald.
Bishop Ryan had two meetings with the plaintiff on March 16 and 23, 2001 relating to salary and pension. It was suggested to her that her pension would be set up as a contributory pension to which she would have to contribute but she refused.
Both the plaintiff and Bishop Ryan kept accounts of these meetings. In Bishop Ryan’s accounts he took issue with some of the details in her accounts. The plaintiff in her evidence took issue with some of the details of Bishop Ryan’s accounts. The conflict in evidence is immaterial as the discussions did not deal with her tenure.
Bishop Ryan became ill at the end of March 2001. He handed over negotiations to Mr Gerard Dooley in October 2001. The initial brief was to agree employment issues pertaining to salary and pension. The plaintiff was unwilling to meet with Mr Dooley without a professional advisor whom she said she could not afford to pay. Mr Dooley on behalf of Bishop Ryan agreed to pay the reasonable expenses of an advisor. The plaintiff appointed Mr Brian Gallagher, solicitor, as her representative and so informed Mr Dooley by letter of November 26, 2001. No meeting was held.
A severance package was offered to her through Mr Gallagher by letter of January 14, 2002. No reply was received. Eventually Mr Gallagher replied on April 28, 2002 to say that the plaintiff was not prepared to accept the severance *91 package and she wanted to keep her job until she was 65.
Bishop Ryan resigned with effect from June 4, 2002 and was appointed Apostolic Administrator with all the facilities of the Bishop. His successor Bishop Moriarty was latter appointed bishop with effect from August 31, 2002.
A notice, dated July 22, 2002, of termination of her contract of employment on the grounds of redundancy signed by Bishop Ryan was served on the plaintiff on July 23, 2002 with effect from September 19, 2002. She refused to accept it. She issued a plenary summons in this matter on July 29, 2002 and sought and obtained an interlocutory injunction on August 29, 2002 requiring the Diocese to pay her salary and fund her pension pending the outcome of these proceedings.
Bishop Moriarty was added as a defendant pursuant to an order of the Master made on February 20, 2003. Bishop Ryan died before the case came on for hearing.
The first six items of relief sought in the statement of claim relate to the plaintiff’s claim that her employment was not lawfully terminated and that she is entitled to remain on in her position as diocesan secretary until she attains 65 years of age. Items 7, 8 and 9 claim consequential relief of damages.
Set out in detail, these are as follows:
1. A declaration that the purported termination of the plaintiff’s tenure by the defendant as diocesan secretary to the Diocese of Kildare and Leighlin is invalid and unlawful in that it—
(a) Constitutes an unlawful repudiation of the plaintiff’s employment which has not been accepted by the plaintiff.
(b) Is without efficacy in that it has been embarked upon in breach of the tenants [sic] of natural and constitutional justice.
(c) Is predicated on an invalid invocation of the provisions of the Redundancy Payments Act 1967, as amended.
2. An order that the defendant do pay to the plaintiff all salary as accruing from the month of August 2002 to the trial of the action or until further order of this Honourable Court.
3. An order requiring the defendant to fund and maintain the plaintiff’s pension and life assurance benefits by paying all instalments of premium together with such further or other order restraining the defendant his servants and agents from reducing the plaintiff’s pension benefits in any mode whatsoever.
4. An injunction restraining the purported termination of the plaintiff’s employment and if necessary, an order permitting the performance of her functions and duties by the plaintiff in her said capacity as diocesan secretary. *92
5. An injunction restraining the defendant his servants and agents from appointing any person other than the plaintiff to the plaintiff’s said position as diocesan secretary and restraining the performance of the plaintiff’s functions and duties by any other person than the plaintiff.
6. An order restraining the defendant his servant and agent from publishing or otherwise disseminating the purported dismissal of the plaintiff whether by recourse to press releases, bulletins, announcements, communiqués or otherwise.
7. Damages as against the defendant arising out of his breach of the said Acquired Rights Directive and/or breach of the plaintiff’s constitutional right to work.
8. Damages for the reckless infliction of nervous shock and emotional suffering.
9. Damages for misrepresentation, negligence, breach of warranty and negligent mis-statement.
The issues to be determined in this action are:
1. Whether the plaintiff was entitled to be kept on in her job until she was 65 years of age in the absence of misconduct or inability.
If the answer is no:
2. Whether the defendants were entitled to determine the plaintiff’s employment on giving reasonable notice.
3. Whether the notice was reasonable.
4. Whether the reason given for the termination is relevant.
5. Whether the principles of national/constitutional justice require to be applied to the dismissal process.
6. Whether the dismissal of the plaintiff was in breach of the Acquired Rights Directive.
In order to determine the first issue it is necessary to determine what were the conditions of employment of the plaintiff as agreed with Bishop Lennon, in particular concerning tenure.
In her affidavit grounding the interlocutory application (paragraph 7) the plaintiff says that she was told she would be the holder of a permanent and pensionable job. She said she would not have accepted the offer without that assurance as she was the holder of a permanent position with the Carlow VEC. She also said that it was her understanding that in accepting employment she was to remain in office until age 65 provided she discharged her duties in a satisfactory manner and did not misconduct herself.
In her direct evidence in the trial she said the same. She said Bishop Lennon reiterated that it was intended that she should be at no loss for having moved *93 and that she should be moving to an equally secure job, permanent and pensionable. She said she understood that it was the equivalent to where she was, in terms of a job for life, if she wanted it, until her sixty-fifth birthday.
She did not say that Bishop Lennon said she had a job for life or until she was 65. She merely said what she understood ‘permanent and pensionable’ to mean.
In so far as her job with the VEC was concerned it was governed by the Vocational Education Act 1930. Section 23 provides:
(1) Subject to the provisions of this section, every vocational education committee shall appoint a chief executive officer and such other officers and servants as it shall from time to time think necessary for the due performance of its powers and duties under this Act.
and
(4) A vocational education committee may dismiss any servants of such committee and, with the approval of the Minister, remove any officer of such committee.
Based on the evidence before me, in my opinion the plaintiff was offered a permanent and pensionable job by Bishop Lennon. There was no express or implied added condition or promise that it would be for life or until age 65. Her previous employment with the VEC, while permanent and pensionable, was not a job for life.
The plaintiff has chosen to sue at common law. There were other possibilities open to her. She could have initiated proceedings under the Unfair Dismissals Act 1967 claiming unfair dismissal or under the Redundancy Payments Act claiming that there was no valid redundancy or that she was unfairly chosen to be redundant. If successful she would have been awarded statutory compensation.
The position at common law is that the employer is entitled to dismiss an employee for any reason or no reason, on giving reasonable notice.
The meaning of ‘permanent and pensionable’ has been defined in several cases. In Walsh v Dublin Health Authority 98 ILTR 82 where the plaintiff held a permanent pensionable position, it was held by Budd J at p. 95:
I have come to the view that the plaintiff has not sustained his case that his employment as a servant was permanent as being continuous for life or that it lasts until full pensionable age is reached, only subject to interruption for misconduct, neglect or unfitness, either at common law or by reason of the provisions of any of the statutes or regulations he relies on. He has, in my view, only established permanency in the sense that this *94 employment was under the terms of his contract indefinite in duration but subject to dismissal on reasonable notice …. If he is not permanent and pensionable in the sense that he claims of having a contract of employment for life subject only to dismissal for misconduct, neglect or unfitness or until he achieves full pensionable age, but merely employed for an indefinite period, as I have held, it follows that he would be dismissable on reasonable notice. It has not been contended that the length of notice given to him was not reasonable and he is therefore not entitled to the second declaration sought.
This judgment was followed with approval in Dooley v Great Southern Hotel [2001] ELR 340. In that case it was stated in the plaintiff’s contract (p. 342 of the judgment)
It is intended that this employment should extend up to normal retiring date, i.e. age 65 in present circumstances. If however, either party should wish, for good and sufficient reason, to terminate the employment, then the applicable period of notice would be six months.
McCracken J in setting out the law states at p. 347:
Finally, there is authority that a claim that employment is permanent in the sense of being continuous for life or until a pensionable age is not sustainable at common law and that in those circumstances the plaintiff’s employment is permanent only in the sense of being for an indefinite period terminable by reasonable notice (Walsh v Dublin Health Board 98 ITLR 82).
The case of Grehan v North Eastern Health Board [1989] IR 422, on which the plaintiff relies, is distinguishable because the plaintiff’s contract in that case specifically provided (subject to certain stated conditions) that the agreement would terminate on the medical practitioner reaching the age of 70 years.
In McClelland v N.I. General Health Services Board [1957] 1 WLR 594 the appointment of senior clerks was expressed to be permanent and pensionable. The Board purported to terminate the appellant’s employment by six months notice on the grounds of redundancy without any suggestion of misconduct or inefficiency on her part. It was held by the Court of Appeal that on a true construction of the terms and conditions of service, the expressed powers of the Board to dismiss and officer were comprehensive and exhaustive and no further power could be implied. Accordingly her service had not been validly terminated. In the course of his judgment Lord Goddard said at p. 601: *95
That an advertisement offers permanent employment does not in my opinion mean thereby that employment is offered. It is an offer, I think, of general as distinct from merely temporary employment, that is, that the person employed would be on the general staff with an expectation that apart from misconduct or inability to perform the duties of his office the employment would continue for an indefinite period. But apart from a special condition, in my opinion, a general employment is always liable to be determined by reasonable notice.
In my opinion the law is clear. In the absence of a special condition in a contract of employment entitling her to a job for life until she was 65, the plaintiff could be dismissed on getting reasonable notice.
There was no special condition in this case. The plaintiff was employed in a job that was permanent and pensionable. She could be dismissed on getting reasonable notice. The notice she received was eight weeks and no case has been made by the plaintiff that that was unreasonable.
The defendants gave redundancy as a reason for the dismissal. Strictly speaking the reason for dismissal is not relevant, but I think I should state that I accept Fr Bill Kemmy’s evidence that there was a true redundancy.
While the plaintiff claims that the principles of natural/constitutional justice applied to the decision to dismiss her, in Hickey v Eastern Health Board [1991] 1 IR 208, Gannon J held (affirmed on appeal by the Supreme Court) that the rules of natural justice regulating dismissal for misconduct had no application where the dismissal was for reasons other than misconduct.
In my opinion the plaintiff’s contention that the defendants were under a duty to consult with her, in accordance with the principles of natural and constitutional justice, having regard to the likely effect on the plaintiff’s employment of a decision to dismiss her, cannot be sustained.
Her other contention that prior consultation should have taken place with the plaintiff by virtue of the European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) Regulations 1980 (S.I. 306 of 1980) as amended by European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) (Amendment) Regulations 2000 (S.I. 487 of 2000) subsequently revoked and replaced by the European Communities (Protection of Employees’ on Transfer of Undertaking) Regulations 2003 (S.I. 131 of 2003) effective April 4, 2003.
The plaintiff’s argument is that there was a transfer of undertaking when Bishop Moriarty succeeded Bishop Ryan conferring a right to consultation on her. I do not consider it necessary to deal in any great detail with this submission. The Diocese of Kildare and Leighlin did not change its identity when Bishop Moriarty was appointed. The change in bishops could not be in my opinion be construed as a transfer of an undertaking. It is more akin to a change *96 in managing director. In any event I doubt that the directive was intended to apply to religions and how they were administered. No authority was submitted to that effect.
Since all the issues have been decided against the plaintiff she is not entitled to succeed. The action is dismissed.