26 May Record Award For Unfair Dismissal
A recent award of €329,000 by the WRC in respect of the dismissal of a Sales Executive (“The Complainant”) is noteworthy for the record breaking compensation that was awarded which in this case amounted to 18 months remuneration, but also serves from an employer and HR point of view to highlight some useful lessons as to why the Adjudication Officer found the dismissal to be “both substantively and procedurally unfair”, when the Respondent Company claimed that the Sales Executive had been dismissed fairly for serious misconduct related to bullying allegations.
The Complainant had worked for the Company since December 2016 and was promoted in April 2019 before being dismissed five months later for misconduct related to the bullying of his manager and another colleague.
Two formal complaints were made against him in late May and early June 2019, leading to an investigation and then a disciplinary process.
The disciplinary process concluded that the Sales Executive’s behaviour amounted to bullying, and it also found that he had been “intimidating, manipulative and undermining” in his behaviour towards one of his colleagues
It was also outlined by the Respondent that he had been given “multiple opportunities” to improve his behaviour before the decision was taken to dismiss him on 17th September 2019.
The Complainant’s representative contended that the investigation was not sufficiently separated from the disciplinary process, and that there was no formal warning issued, contrary to the employee handbook, with the precise grounds of dismissal unclear when the dismissal was formally communicated.
It was further asserted that the Sales Executive was not afforded the opportunity to cross-examine his two colleagues who made allegations against him at the disciplinary hearing, and that the process had failed to take into account his personal relationship with one of the colleagues, in a workplace where “robust and coarse language was part of the culture”.
The Complainant’s representative said the complaints made by the Complainant’s line manager and colleague were “vague and implausible as examples of bullying and harassment” and it was clear that a decision had been made “well in advance of his ultimate dismissal”.
The Adjudicating Officer in his decision noted that while the complainant did engage in some inappropriate behaviours, they had fallen a long way short of warranting his dismissal and an informal meeting held on 7th May 2019 did not in any manner constitute a warning or put the Complainant on notice that his position was at risk, as claimed by the Respondent. It was also noted that there was no reference made to any potential breach of the Respondent’s bullying and harassment procedure at this stage.
He further noted that the behaviour that had led to his dismissal had occurred during the period of Ramadan, which the Complainant was observing as a practicing Muslim and crucially was very similar to behaviour which previously had only led to an informal meeting taking place, adding that any reasonable employer would have tried to understand if the employee’s observance of Ramadan was causing a difficulty for him.
The Adjudicating Officer expressed that there was a “lack of decency, humanity and dignity” shown to the Complainant which was “deplorable” in light of the references made by respondent witnesses to the culture and values of the company and the importance it set on respect, with the Complainant being suspended by a telephone call and informed by email both that his employment was being terminated and his appeal was unsuccessful, without being afforded the basic human courtesy of a face-to-face meeting.
Other procedural issues identified by the Adjudicating Officer were the overlapping involvement of the decision maker in the dismissal decision with other stages of the process and management of the Complainant’s behaviours, failure to invoke the disciplinary procedure earlier when it was claimed the behaviours were so serious and lack of clarity and real examples of behaviours that constituted the reasons for the dismissal.
Whilst the Complainant was seeking reinstatement, the Adjudicator determined that the working relationship had irretrievably broken down and that compensation was more appropriate. The issue of the timing of bonus payments due to the Complainant was relevant and it was deemed that the Complainant’s weekly remuneration was €4,220.50 with a potential maximum award of 104 weeks available. The Complainant was out of work from the date of his dismissal 17th September 2019 until 17 July 2021 when he took up a new role at a much-reduced salary.
The Adjudication Officer accepted the difficulties the Complainant had in securing new employment due to his dismissal but noted that his job search attempts were at times feeble, and he had contributed to the decision to dismiss, and therefore decided that the correct compensation should be at 75% of his actual losses i.e., €329,199.
Apart from the useful reminders about the necessity for fair and clear process and procedures at all times and separation of the investigation and disciplinary stages, the case also highlights that the established definition of bullying has a high bar to be met:
Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work or in the course of employment, which could be reasonably be regarded as undermining an individual’s right to dignity at work.
In this case the behaviours complained about whilst inappropriate did not meet the required standard and resulted in an unreasonable and disproportionate sanction of dismissal being applied.