Case Number: ADJ-00022471. Workplace Relations Commission.
| Docket Number | ADJ-00022471 |
| Date | 01 May 2020 |
| Year | 2020 |
| Court | Workplace Relations Commission |
Adjudication Reference: ADJ-00022471
Parties:|
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Complainant |
Respondent |
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Anonymised Parties |
A Postal Operative |
A Postal Service |
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Act |
Complaint/Dispute Reference No. |
Date of Receipt |
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Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00029113-001 |
17/06/2019 |
Date of Adjudication Hearing: 25 September 2019 and 8 January 2020
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
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This case concerns a claim for unfair dismissal on behalf on the complainant, a Postal Operative. The claim is denied by the respondent, who operates a large Postal service. Both parties were legally represented. The complainant by Emmet Boyle, BL and the respondent by Brian Hallisey, BL. Both parties made written submissions. The respondent submitted copies of company procedures relied in the case. The complainant has not worked since his dismissal. |
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The Respondent operates a large Postal service and employed the complainant as a Postal Operative on a temporary basis from 18 January 1993. He secured a permanent appointment in July 1995 and worked until the date of his dismissal for gross misconduct on 15 June 2019. His weekly base income was €615.00 gross. The respondent denied that the complainant had been unfairly dismissed. Counsel outlined the background to the case. On 29 June 2018, the complainant visited a client premises during his duty. During delivering post, he engaged in inappropriate behaviour with a female employee on the client site. On 4 July 2018, the customer service division received a complaint from the Director of HR for the client company which contained the following: A male member of your delivery staff is accused by a female member of our staff of inappropriate behaviour at our office on Friday 29 June 2019 last. Your office was asked not to allow the said person to deliver to our office until at least the matter was fully investigated by X and Y. This ban lasted one day, Monday 2 July but he was back again yesterday and today …… The matter had been brought to the attention of the Gardai and the author requested to speak to a Senior member of HR staff. On 10 July 2018 the Respondent HR Manager reviewed the CC TV footage of the incident. On 11 July, the respondent was advised by the Gardai of a live complaint against the complainant which was being investigated. The complainant’s employment is governed by an agreed disciplinary Policy. On 12 July 2018 the complainant was asked to attend a meeting at regional office with the Human Resource Manager. He was advised that a serious allegation was made by an employee at the client site regarding his conduct on 29 June 2018. Further enquiries were required prior to providing the complainant with the specific allegations. The complainant was represented and placed on paid suspension to facilitate an investigation. He was notified that “A further meeting will take place shortly to allow for specific allegations to be put to you.” The respondent in considering the potential criminal aspect delegated the investigation to its Investigations Branch. On 18 July 2018, the Investigator and the Respondent HR Manager attended the client site where the Director of HR provided CC TV footage on consent and three signed written statements by client employees. Ms S, the aggrieved employee also submitted a statement of complaint. She recorded that the complainant during post-delivery of mail had kissed the top of her head. On 19 July 2018, the investigator met with the complainant who was represented. The CC TV footage was shown to the complainant who denied kissing the client employee and gave his varied account of what had occurred. This centred on his having to place mail behind the reception area due to a group of people being present in his habitual delivery area. He denied kissing Ms S. The Investigator concluded, and a report was submitted to the Respondent Human Resource Department in August 2018. By letter dated 20 September 2018, the complainant was advising that preliminary enquiries had uncovered that several serious issues of trust and confidence in the complainant had arisen which warranted the commencement of disciplinary proceedings. On 9 October 2018, a Disciplinary meeting took place where the complainant was represented by his Union. He was advised of his opportunity to put forward any matter for consideration with Ms A, the Disciplinary Manager. The complainant contended that his entrance to the delivery area was obstructed and he was compelled to walk around the counter. In his attempt to deliver the post, he lost his balance. He was provided with CC TV stills from outside the building and all resulting documentation from the Disciplinary procedure. Mr C Human Resource Manager was provided with Ms as report and he decided to dismiss the complainant by letter dated 27 February 2019 because he had: “breached the fundamental trust required of a Postal Operative by approaching a female customer while at work” He found that the complainants actions had “blatantly infringed the female customers personal right to bodily integrity and to have a safe place of work” The Respondent provided an opportunity to appeal and this was heard by Mr D, Head of Employee Relations on 11 April 2019. The decision to dismiss remained unaltered and the complainant received confirmation of his unsuccessful appeal on 7 June 2019. Counsel submitted that dismissal for gross misconduct was the appropriate sanction for the complainant. He had been afforded fair procedures and natural justice. The respondent had followed the agreed Disciplinary procedure which complied with SI 146/2000 code of Practice on disciplinary Procedures. The Respondent relied on the test in Morales v Carton Bros UD 835/2011 in determining whether an investigation met the required level of fair procedure 1 The employee was aware of all allegations 2 the employee had adequate opportunity to deny the allegations |
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