Heineken has been ordered to pay just over €29,000 to a sacked employee after its human resources team ignored the “rough-and-tumble” work atmosphere at its brewhouse in concluding that he had engaged in the bullying and harassment of two colleagues – which he denied.
The worker, Keith Hackett, had originally sought €90,000 for loss of earnings after being sacked by Heineken Ireland Ltd in October 2022 – but was awarded less than a quarter of that after the Workplace Relations Commission (WRC) found that a “serious disciplinary sanction” would have been warranted instead.
The tribunal heard the firm, Ireland’s second-largest brewer, hired in two highly experienced employment law professionals to carry out two separate disciplinary processes with Mr Hackett.
However, it gave both of them “limited” terms of reference which left neither able to make conclusive findings of gross misconduct, an adjudicator decided.
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Cian Cotter BL, appearing for Heineken instructed by Shane Crossan of O’Flynn Exhams LLP, submitted that two brewery operators, Mr A and Mr B, lodged complaints against Mr Hackett accusing him of “bullying and harassment” in February 2022.
Mr A claimed he was “blamed for errors”, “undermined” and “subject to derogatory remarks”, while Mr B claimed Mr Hackett “derided his abilities”, “accused him unfairly of certain behaviours”, “insulted him” and “refused to assist him”.
A month after the investigation began, it was expanded to include alleged “derogatory comments about female colleagues” by Mr Hackett.
Mr Hackett told the tribunal he was “shocked” to hear that complaints had been made against him when he met HR (human resources) on 16th February 2022. He said he had “refuted the allegations that he was a bully” and said the interactions complained of were “part of the banter in the work area”.
Giving evidence to the WRC in June, Mr Hackett said the brewhouse where he worked was “a man’s world” where “banter and colourful language was the norm” between male workers.
He said Mr A and Mr B “were not picking up in training”, describing a “toxic” atmosphere at his workstation. When he complained to his supervisor, he said he was told: “You’re doing the bollocks, you’re the senior man.” He said the “pressure” of the role became too much for him, but his request to move to different duties for less pay was refused and he was denied access to a redundancy package that had been offered.
During the bullying investigation, Mr Hackett showed an investigator some graphs detailing production processes in the context of explaining what he said were “mistakes” made by Mr A and Mr B.
The investigator, solicitor Michael Hegarty, told the tribunal he reported the graphs to the company as “a potential serious breach of confidential data”. Mr Hackett denied any such breach in his evidence. A barrister, Sarah Daly BL, was appointed to lead a second investigation into an allegation of mishandling confidential information, the tribunal heard.
Mr Hegarty said in evidence that he had been tasked with finding whether the behaviours alleged by Mr A and Mr B had taken place and concluded: “In the main, this was the case.”
However, the witness accepted under cross-examination from Mr Hackett’s trade union rep, Deirdre Canty of Siptu, that it “was not his brief” to decide whether the worker had engaged in bullying and harassment in breach of the Heineken dignity at work policy.
The tribunal heard the second investigator, Ms Daly, had concluded Mr Hackett sent material pertaining to brewing processes, safety reports and “other sensitive documents” to his own personal email addresses between 2015 and 2018.
Ms Daly accepted, however, that it was “never the intention of the complainant to share or otherwise circulate the documents” and that she “did not issue findings” on the allegation against Mr Hackett on the mishandling of confidential information.
The evidence of Heineken’s HR director, Alfonso Auñón García, was that “the HR team decided that the findings of both investigations warranted disciplinary action”. He said the gross misconduct alleged was the worst he had come across in 20 years in human resources.
In his decision, adjudicator Thomas O’Driscoll said the bullying and harassment investigation was “severely limited” by the terms of reference given by the employer – restricting it to a neutral finding of fact instead of a finding on whether bullying or harassment had occurred.
He said Mr Hackett gave “unrebutted convincing evidence” that the brewhouse was a workplace with “a more casual or rough-and-tumble atmosphere” where “foul and profane language” would be more accepted – and that the “specific cultural context” should have been taken into account.
The Heineken HR team then made a “leap to the conclusion of bullying and harassment”, Mr O’Driscoll wrote.
The second disciplinary investigation on the company documents was similarly “limited” by its terms of reference, the adjudicator wrote.
As it had been Heineken’s HR chief, Mr Garcia, who decided gross misconduct had taken place and decided to sack Mr Hackett, there was “no separate conclusive investigation of the behaviour which could be considered independent”.
Though Mr Hackett’s trade union proposed €90,000 as a figure for loss of earnings, Mr O’Driscoll found some evidence of efforts to mitigate loss by finding new work was lacking and a performance bonus was not necessarily due, put the figure at €60,000.
He added that although the dismissal was unfair, Mr Hackett “did engage in unacceptable behaviour which should have warranted a serious disciplinary sanction short of dismissal”. He cut the award for loss of earnings under the Unfair Dismissals Act by 70 per cent to €18,000 on that basis.
He awarded a further €11,048 for notice pay not given when Mr Hackett was summarily dismissed, but rejected a further claim for two weeks’ sick pay.
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