A long-serving postman was unfairly dismissed concerning a disputed kiss to the top of the head of a receptionist.
That is according to Workplace Relations Commission (WRC) Adjudication Officer Patsy Doyle, who has ordered that the postal worker be re-employed by his employer, which operates a large postal service.
The man will also receive around €17,835 in lost pay as Ms Doyle has ordered that the date of the man’s dismissal for gross misconduct on June 15 last to January of this year be considered for continuity of service.
The man had a permanent position with his employer since 1995 and his unfair dismissal arose from an alleged incident on June 29, 2018 at a premises operated by a client of his employer.
The client company accused the postman of engaging in inappropriate behaviour where the postman was alleged to have kissed the top of a female receptionist's head during post-delivery of mail.
The client company also reported the matter to the gardaí.
CCTV footage of the alleged incident was shown to the postal worker who denied kissing the client employee and gave his varied account of what had occurred.
The man told his employer that he lost his balance on the occasion.
At the WRC, the man stated that as he arrived at the client premises, he had been on speakerphone to his wife and daughter.
The man recalled approaching the desk with his phone to his ear and maintained that he placed one arm around the receptionist while keeping the mail in the other hand.
The man understood the receptionist had told him he was over the top, but he could not figure out what she was saying.
The man stated that he knew he acted inappropriately but it was not intentional and he was not given a chance to apologise. He said he did not mean to upset her, but his gait had been affected post a road crash he had been involved in years previously.
The man told the WRC that the criminal case had been dismissed and the Probation Act applied.
However, the postman was dismissed by his employer in February 2019 for gross misconduct when he “breached the fundamental trust required of a Postal Operative by approaching a female customer while at work”.
His employer concluded that the postal worker’s actions had “blatantly infringed the female customer's personal right to bodily integrity and to have a safe place of work”.
In her ruling finding that the postman was unfairly dismissed, Ms Doyle stated that she was not satisfied that the employer had reasonable grounds to sustain the belief that the postman had misconducted himself on June 29, 2018.
Ms Doyle stated that the employer investigation had “serious shortcomings” and that the utter reliance on CCTV footage over the direct evidence of a 26-year employee to be unsound without further probing.
Ms Doyle further stated:
I cannot agree that the dismissal was proportionate to the alleged misconduct.
Ms Doyle also found that the employer became overwhelmed by a perceived power of a client site which caused them to rush to the “nuclear option” of dismissal rather than a more proportionate sanction or retraining or rehabilitation for a long-standing employee.
Ms Doyle also found that the decision to dismiss was outside the range of reasonable responses open to the employer and stated that she had not identified substantial grounds justifying dismissal.
Ms Doyle further found that the complainant “made a significant contribution to his demise by his underwhelming engagement with his former employer during the events surrounding June 29. He admitted that he erred and apologised. I noted that neither party engaged in an active consideration of an attempt at mediation.”
In her ruling, Ms Doyle has ordered that the postman be re-engaged on indirect work followed by a period of intensive training on customer care and mobile phone usage at work.
She stated that progress on this to be reviewed within one year with a view to returning the employee to direct service.