In the recent decision of Robert Libera v Regeneron Ireland DAC, ADJ-0023417, the WRC determined that although the Complainant had been unfairly dismissed for gross misconduct, he had contributed to his dismissal and therefore reduced the award by 40%.

Facts: The Complainant was employed as a Manufacturing Support Lead by the Respondent from 10th August 2015, until he was dismissed for gross misconduct on 20th  March 2019, after allegedly sending an offensive communication to an employee (Ms A) of a third-party supplier who also worked on site.

The Complainant submitted that the Respondent had erred in fact, procedure and in the application of the law and best principles, most particularly in its failure to afford him the benefit of fair procedures and natural justice. There were no terms of reference, he was not allowed to cross examine appropriate persons and he was not allowed legal representation. The Respondent was on notice of these issues at both the dismissal and appeal stages. Further to this, following a GDPR application by the Complainant it became clear that Ms A had clarified by text on the day of her interview that she had not seen the clip from Family Guy that was attached to the allegedly offensive communication which the Complainant submitted proved that no bad intentions existed in the communications and was intended as a joke.

Decision: The Adjudicator commented that he had given great consideration to the issue of whether the decision should be deemed fair or unfair on both substantive and procedural grounds and concluded that the Complainant’s case was very weak on the substantive issue, irrespective of Ms. A’s clarification that she had not seen the video that gave context to the inappropriate message. The Adjudicator noted that the Complainant had to bear responsibility for his dismissal as sending a text that was/could have been interpreted as sexual innuendo irrespective of the Family Guy clip being attached was inappropriate.

The dismissal was held to be unfair on both substantial and procedural grounds and the Adjudicator also commented that a reasonable employer would have considered a lessor disciplinary sanction. However the Complainant was held to have made a contribution to his dismissal of 40% for sending the inappropriate message outside of work hours. The Complainant had an annual loss of €29,000 and a once off loss on shares estimated at €9,300 giving a total loss of €67,300 over the maximum two year period allowed by the Act. The Complainant was therefore awarded €40,380 compensation.

Takeaway for the Employers: Employers should ensure that when initiating any investigation and subsequent disciplinary action that they follow fair procedures. Having made errors in the procedure the Complainant was held to have been unfairly dismissed despite having been held to have significantly contributed to his dismissal,

Link  – https://www.workplacerelations.ie/en/cases/2022/january/adj-00023417.html

Authors – Eva Lindsay and Anne O’Connell