ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000253

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 29/01/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, 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.

Complainant’s Submission and Presentation:

1. The Complainant was dismissed from his employment following a disciplinary procedure.  The reason for the dismissal was gross misconduct, namely doing paid work elsewhere while absent from work.  The Complainant submitted that the dismissal was unfair and unwarranted as he was not engaged in doing paid work elsewhere on the 16th of July 2015.  The Complainant denied he was engaged in other paid work and submitted there was no evidence to the contrary.  He further submitted that the dismissal was disproportionate as well as unfair and unwarranted.

2. The Complainant’s submission was that on the 16th of July 2015 at approximately 3pm he rang his employer and spoke to his line leader and informed him he would not be at work for 4pm as he had to attend “a personal matter”.  He confirmed he would be in attendance at work between 7pm and 7.30pm. 

3. His evidence was that his brother who runs a plant hire business was engaged to attend the crash site at [a village 30km away] in order to remove the crash wreckage.  At approximately 3pm the Complainant’s brother contacted him and asked him to attend at the crash site and to bring equipment that he required.  It was at that stage that the Complainant telephoned the Respondent and informed them that he wouldn’t be able to attend at 4pm.

4. When the Complainant attended work at 7.30pm he sought out his team leader.  The Complainant requested that he would be allowed take four hours annual leave for the time he had missed as he had more than sufficient leave to take in the leave year.  The team leader refused the request and asked the Complainant to detail where he was and what he was doing between his scheduled start time of 4pm and his time of arrival at work 7.30pm.  The Complainant responded and informed the team leader that he had to attend a family/personal matter.  The team leader queried whether he was at the crash site in [the village].  The Complainant replied that he was in [the village], but not at the crash site.  The team leader instructed the Complainant to go home and requested that he set out his explanation in writing. 

5. The Complainant submitted his letter of explanation on the 17th of July 2015. 

6. A disciplinary investigation was commenced by the Respondent into the actions of the Complainant.  Initially the Complainant denied that he was crash site, however on being furnished with a photograph which identified him carrying a piece of the wreckage and wearing a high visibility jacket similar to the other workers at the crash site, he admitted that he was in the photograph at the site. 

7. The Complainant submitted that he made an honest attempt to account for and provide evidence to the Respondent in relation to his whereabouts on the day.  The Complainant submitted that he cooperated with the investigation to the best of his ability.  The Complainant submitted that he valued his job and believed that the investigation report was “untrue, fanciful and utterly subjective”.  The Complainant submitted that he worked for almost twenty years for the Respondent and enjoyed his work so much so that his choice of recompense was to be reinstatement.  He submitted that at all times throughout his employment he was respectful to the Respondent and his colleagues and was surprised by the investigation conclusion.

8. He further submitted that the Respondent had treated him most unfairly by dismissing him.  He submitted that his actions on the day in question did not warrant dismissal as he had contacted the Respondent prior to his shift start.  He did what was expected of him and phoned his employer informing them that he would be delayed. 

9. The Complainant took issue with a reference in the decision to dismiss him on the 7th August 2015 to his Stage 4 Suspension which had elapsed on the 30th March 2015.  The Complainant submitted that this was an example breach of natural justice and due process.

10. The Complainant further submitted that the Manager Development Engineering, who was charged with hearing his appeal, was in a less senior or in an equal position to the first instance decision maker who was the Focus Factory Manager. 

11. His team leader had formed a certain view as to his guilt on his attendance at work on the 16th of July 2015.  The fact that he instructed him to go home rather than working out the remainder of his shift was evidence of same. 

12. The reference to the Complainant’s previous disciplinary record indicated that the decision to dismiss him was made not solely in relation to the events of the 16th of July 2015 but also took into account previous disciplinary sanctions. During the investigation meeting on the 27th of July 2015 and the 28th of July 2015, the Complainant’s past disciplinary record was raised.  The HR manager stated that the Complainant had just come off a suspension and should be trying to build up trust with the company.  The Complainant replied that it should never have happened [his suspension].  However the reference to the Complainant’s previous suspension at the investigation meetings of the 27th July 2015 was clouded by the comment by the HR manager that his previous suspension was “not counted”. 

Respondent’s Submission and Presentation:

13. The Respondent is a large medical technology services and solutions company.  The facility has been in operation for thirty three years and has circa five hundred employees at the plant. 

14. The facts as to what happened on the 16th of July 2015 at were not in dispute. 

15. When the Complainant arrived at work his shift team leader asked the reason for his absence from work and inability to start at his normal time.  The Complainant replied that it was “personal”.  The team leader said to the Complainant that he hoped that his absence had nothing to do with “the incident in [the village]” the previous day.  The Complainant replied that he was in [the village] that morning but that that was not the reason why he wasn’t in work at the designated time.  The reason for his absence was “a personal reason”.  The team leader advised the Complainant that another employee was now doing his work and sent him home. 

16. By letter 20th of July 2015 the Human Resources manager wrote to the Complainant advising that his explanation for his failure to report to work at the designated time of 4pm was insufficient and that he needed to provide further explanation for the reasons.  He was invited to attend a meeting at 9am the following morning to discuss this further. 

17. A meeting was held the following day 21st of July 2015 attended by the Complainant, his shop steward, the Human Resources manager and the line manager.  The Complainant was asked to explain further and to provide more information as to the reasons for his failure to attend work on the 16th of July 2015.  The Complainant at that meeting again stated that his absence was due to personal reasons, that “a family member was in bother and needed him”.  He maintained his assertions that he was not delayed due to the crash in [the village].  He admitted that he had received a telephone call from his brother who was at the crash site.  His brother had a plant recovery business and was involved in the removal of the wreckage from the crash site.  Initially he stated that the telephone call from his brother was at 3pm however he later clarified this as having been between 11am and 12am.  When asked about the difference in the times, he replied he was “confused”. 

18. The Complainant went on to explain the reason for his inability to attend work at the scheduled time was due to the fact that he had to collect his daughter from a dental appointment and that delayed him getting to work.  He was unsure sure of the name of the dentist.  He stated the time of pick up from the dentist as 5pm. 

19. The Complainant gave conflicting reports as to the basis for his absence from work.   There was factual errors with regard to the time that his brother telephoned him, and with the time that he went to [the village] to meet his brother, where he collected his daughter from, what dentist he collected his daughter from.  The Respondent submitted that the overall tone of the replies was evasive. 

20. The investigation meetings took place on the 21st of July 2015, 27th of July 2015, 28th of July 2015, at all stages during the investigation meetings the Complainant was represented by his shop steward. 

21. During the investigation the Complainant initially denied that he was in photographs of the crash scene. However at a later stage of the investigation he confirmed he was in one of the photos.

22. The Complainant was sent a copy of the investigation report on the 4th of August 2015.  He was invited to an oral disciplinary hearing and to comment on the investigation report.  The Complainant declined the opportunity and stated he had nothing further to add to his original statement.  This information was relayed by the Complainant’s shop steward to the HR manager by email 5th of August 2015.  The wording of the email was not approved by the Complainant, however he did confirm at the adjudication hearing that he did query “what was the point in meeting the Respondent again” to his shop steward.

23. The decision maker in the disciplinary first instance hearing was the Focus factory manager.  He reviewed all the documentation submitted to him and invited the Complainant to a meeting to be informed of his decision.  Initially the Complainant declined to attend, however he was instructed by his supervisor to attend the meeting and he did so.  At the meeting the Operations site manager informed him of his decision to dismiss him and this was confirmed in correspondence 7th of August 2015.  In paragraph two of this letter contained the reference

“I have also taken into consideration your overall performance record including your most disciplinary action i.e. stage four suspension which elapsed on the 30th of March 2015”.

24. The decision was made to dismiss the Complainant.

25. On the 18th of August 2015 the Complainant submitted an appeal against the disciplinary decision. 

26. On the 3rd of September 2015 the appeal hearing was conducted by the Manager Development Engineering.  The Complainant was represented at the appeal hearing by his Union Representative.

27. The outcome of the appeal was communicated to the Complainant on the 18th of September 2015 advising that the decision to dismiss him was upheld.  Decision: Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Decision:

28. The facts of the case are admitted.  The Complainant was due at work at 4pm on the 16th of July 2015.  The reason for his absence from work until he attended at 7.30pm is not agreed. 

29. A copy of his contract of employment was not provided to me; however I was advised that the only related clause on working outside the Respondent related to a maximum forty eight hour working hours provision. 

30. The disciplinary hearings were carried out in accordance with the procedures and the Complainant had no issues with them apart from whether the person who heard the appeal was in the same division or junior to the first instance decision maker.

31. The Respondent confirmed that there was written procedures in the company setting out the request and allocation of annual leave from the company.  No evidence was given as to where there was an absence management policy in the Respondent’s company or not.  It was confirmed that there was a force majeure policy.

32. The Complainant admitted he was a part time farmer but denied he was the owner of the Plant Hire business.  During the adjudication hearing the Complainant confirmed that the Plant Hire business was not a limited liability company.  He confirmed that the business name was registered to him and he traded as a sole trader.  He advised that he did not work in the business, that he employed his brother and he made tax returns on the basis that he did not make a profit, but that his brother received all the business profits as employment income.  He confirmed that he had the benefit of accountancy advice and named his accountant. When questioned as to whom issued invoices in the name of the Plant Hire business, the Complainant gave evidence that it was his brother who did so.  The Complainant submitted that he was not paid by his brother for his assistance on the day in question or at any time. 

33. The Complainant wasn’t paid for that shift with the Respondent either.  His supervisor sent him home following his late attendance at work.  Evidence was given that this would be unusual.  Evidence was given that this was the first time of this behaviour from the Complainant.  This was confirmed by the Respondent.

34. At all stages during the disciplinary investigation the Complainant continued at work and was represented by his shop steward and union official.

35. It was clear that there had been prior an issue between the parties and that trust and confidence between them was at a very low ebb.  It was also apparent that the Complainant never considered that his actions of the 16th July 2015 would have resulted in his dismissal.

36. The Complainant was given every opportunity to respond to the issues raised and he availed of that opportunity in the many meetings.  At the investigation meetings, disciplinary hearing and appeal hearing, the Complainant was given the full opportunity to fully set out the basis of his case and appeal.  The Complainant was required to explain his absence from work which the company viewed very seriously.  The reply from the Complainant was short and ambiguous.  His answers were also conflicting and evasive. 

37. Having heard the evidence, I am satisfied that the arbiter on appeal was separate and distinct to the decision maker at the first instance.

38. I have taken careful account of the evidence and oral and written submissions made on behalf of the Complainant and Respondent.  The evidence clearly points to the Complainant having been afforded procedures that informed him of the issue of concern and invited at every stage of the process to give any responses or observations he wished and he did so through his representatives.   He was afforded the opportunity of an oral first instance hearing which he declined.  He was afforded an oral appeal hearing and a full opportunity to make oral submissions.

39. However the reference to the Complainant’s previous suspension at the investigation meetings of the 27th July 2015 and in the decision at first instance of the Focus Factory Manager to dismiss the Complainant on the 7th August 2015 is claimed to be unfair. 

40. I have also to consider the proportionality of the sanction and note that this is the first occurrence of this event by the Complainant who was an employee of the Respondent for nearly 20 years and if there were other less severe sanctions open to the Respondent to invoke.

41.  I am conscious that the requirement is fair procedures, not perfect procedures. The law does not demand the impossible.  Fairness is ever required; perfection is unattainable as stated by Mr. Justice Barrett in Boyle –v- An Post [2015] IEHC 589.

42. Having considered the totality of the above, on balance I find that the Complainant was unfairly dismissed, but that he contributed to his own dismissal by his actions on the 16th July 2015 and uncooperative behaviour during the disciplinary process.

43. I award the Complainant €8,500.00 with regard to his unfair dismissal under the Unfair Dismissals Acts, 1977 to 2007. 

Marguerite Buckley

Adjudication officer

Dated: 20th April 2016