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WRC makes largest ever award of €329,000 to sales executive for unfair dismissal



A sales executive has been awarded over €329,000 for unfair dismissal after being sacked without a formal warning over bullying allegations.

The award, which was revealed in a judgment published on Tuesday , is understood to be the largest ever made by the Workplace Relations Commission (WRC) , and more than double the previous record award.

Complaints were submitted in March, 2021 by the former sales executive under the Unfair Dismissals Act and the Payment of Wages Act against the company.

The man had worked for the firm since December, 2016 and was promoted to enterprise account executive in April 2019 – but was dismissed five months later on the grounds of serious misconduct after he was accused of bullying.

Conduct

Neither the complainant nor the firm have been named by the adjudicating officer in the case. The adjudicator found that the parties had “an expectation that they would not be named when the case commenced” as its first hearing date preceded the ruling of the Supreme Court in the Zalewski case.

Desmond Ryan BL appeared for the company, instructed by Matheson Solicitors.

He said the sales executive was dismissed on the grounds of his conduct after a “full and fair investigatory process and an appeal process”.

“The conduct in question related to bullying of his manager and another colleague,” he said.

Mr Ryan submitted that the firm tried to deal with the issues on an informal basis in May 2019 as it was a “first offence” and they wanted to give the sales executive “a chance to improve his tone, reactions and behaviours”.

Emails opened to the adjudication hearing in evidence informed the complainant that an improvement was “critical to your future at [the company]”.

The sales executive emailed to apologise for his language, calling it “too direct and probably rude” on 15th May, Mr Ryan said, which the company argued “did not nearly capture the seriousness of the complainant’s behaviour”.

It was the company’s position that it gave the complainant “every reasonable opportunity on an informal basis on several occasions to re-evaluate his aggressive and inappropriate behaviours” but that these “only worsened over time”, Mr Ryan submitted.

Two formal complaints were made against the complainant in late May and early June, 2019, leading to an investigation and then a disciplinary process, counsel said.

On 6th June, the complainant was suspended with pay pending further investigation, he added, as the company’s senior human resources (HR) manager said she had “genuine concerns… that the complainant would repeat the conduct in question” risking “personal, business and reputational issues” for the firm.

Mr Ryan said the suspension was a precaution to avoid impact on the firm’s “obligation to provide a harassment-free workplace” and that the complainant had been told it was not a “disciplinary sanction”.

Position

At disciplinary meetings on 6th September, 2019, the complainant’s position was that he was “frustrated by errors in account and lead allocation” which “aggravated the circumstances”, Mr Ryan said.

He said the complainant acknowledged that a WhatsApp recording in which he said “either you do something or I will do something about it” may have been something his line manager found threatening.

The complainant acknowledged his language and behaviour “merited discipline” but denied it amounted to bullying and harassment, counsel added.

The chair of the disciplinary process concluded the behaviour was bullying and that the sales executive had been given “multiple opportunities” to improve his behaviour, Mr Ryan said.

The disciplinary chair found the complainant had been “intimidating, manipulative and undermining” in his behaviour towards one of his colleagues and that this constituted bullying in breach of the company’s workplace policies, Mr Ryan said.

The complainant’s behaviour towards his line manager was found to be “unwarranted, aggressive, and extreme in nature”, and this too was “intended as a form of intimidation and bullying”, Mr Ryan added.

The sales executive was dismissed on the grounds of gross misconduct on 17th September, 2019.

Mr Ryan said the company’s executive vice-president for the EMEA area heard the appeal in a “full and fair” process and upheld the complainant’s dismissal.

Process

Daniel Johnson of Johnson & Johnson solicitors, who appeared for the complainant, said the investigation was not properly isolated from the disciplinary process.

His client was not afforded the opportunity to cross-examine the two men who made allegations against him at the disciplinary hearings –m and that the process failed to take into account his personal relationship with one of the colleagues, Mr Johnson said.

“Robust and coarse language was part of the workplace culture,” he added.

He said there was no formal warning issued, contrary to the employee handbook, and the precise grounds were “unclear in the dismissal letter” and “did not explain what behaviour was either ‘aggressive’ or ‘extreme’,” counsel submitted.

The firm had “augmented some of the allegations” during the disciplinary process and took no mitigating factors into account, he said.

He said the complaints made by his client’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”.

In his decision, made public on Tuesday , the adjudicating officer Breiffni O’Neill wrote that it was “extraordinary” that the company’s decision-maker and its appeals officer thought that correspondence following an informal discussion on 7th May could be considered a warning to the complainant.

Argument

Mr O’Neill wrote that he did not accept the company’s argument that the words “critical to your future” should have made it clear that his role was in jeopardy.

“Any reasonable person would understand from reading [this] that the complainant should modify his communication style if he wanted to progress in his career” he wrote.

“I am satisfied that, while the complainant did engage in some inappropriate behaviours . . . these fell a long way short of warranting his dismissal in the circumstances,” Mr O’Neill added.

He noted that the comments made between 7th May and 6th June which resulted in the complainant’s suspension “had not even justified a formal verbal warning” less than a month before.

He also noted that this behaviour “occurred during the period of Ramadan, which [he] as a practicing Muslim was observing” and was “largely similar” to the behaviour which had led to the informal meeting.

“Any reasonable employer would have tried to understand if the employee’s observance of Ramadan was causing a difficulty for him,” he added.

He said there was “no clear indication” in the evidence that the complainant’s behaviour got worse after the meeting on 7 May and that the decision-maker gave “inordinate weight” to informal discussions he had with him the same day.

Mr O’Neill also found there had been procedural shortcomings in the investigation and disciplinary process.

He said the decision-maker was “heavily involved in attempts to manage the complainant’s behaviours and could not have been seen to be independent”.

Values

He also held 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.

“The complainant – a frequently promoted, top performer – was suspended via a phone call and was informed both that his employment was being terminated and his appeal was unsuccessful via email instead of being afforded the basic human courtesy of a face-to-face meeting,” he added.

Mr O’Neill found the dismissal of the sales executive was “both substantively and procedurally unfair” and that he was therefore unfairly dismissed.

The complainant had sought to be reinstated, but Mr O’Neill said he had contributed to his dismissal by his conduct and that the working relationship between the parties had broken down – and therefore he would award compensation.

The company’s position was that the sales executive’s pay should be calculated at €219,466 – while the complainant claimed it should be €306,492, based on the timing of bonus payments he said were due.

Mr O’Neill found there was no provision in legislation for including bonuses for work that might have been started by a complainant but completed by another worker – and wrote that he would hold to the company’s calculation on pay.

Job

The complainant had been out of work from 17th September, 2019 to 17th July, 2021 – meaning the figure for overall loss submitted, €438,932, was in excess of 104 weeks’ pay, the maximum compensation the WRC could award, Mr O’Neill wrote.

Mr O’Neill took the view that it would have been “extremely difficult” to find a new job and that he was not surprised it took him 22 months.

“I recognise that the complainant earned a very substantial remuneration package, that the respondent operates in a niche sector in a city in a very small country where both employers and recruitment agencies are easily known to one another,” he wrote.

He said there was an “obvious reluctance” among prospective employers to offer the complainant “any position, let alone a well-paid one” when made aware of the reasons for the termination of his employment “either through word of mouth or when informed at interview”.

Mr O’Neill made an award for 75 per cent of the total financial loss suffered by the complainant: €329,199.



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