ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000308

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

Date of Adjudication Hearing: 16/03/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

I refused to work on a vehicle for which there was no job card. Later that morning a work colleague who was working on that vehicle pointed out that it now had a job card.  I felt that I was being made a fool of and being ignored.

I was also unhappy with the manner in which the workshop had dealt with a car belonging to my son. He had left it into Rosslare to be repaired and the job done on it was delayed and was sub-standard.  It had taken a lot of time and inconvenience to my son to sort out.

Respondent’s Submission and Presentation:

The complainant’s actions amounted to serious misconduct as would be defined by a reasonable employer and as set out in the company’s disciplinary procedure.

The respondent has a duty of care to all its employees. If management had not disciplined the complainant appropriately it would have given the impression to other employees that such conduct was not viewed by the respondent as incorrect.

The complainant was given the right of representation which he declined and was given the opportunity to apologise to his manager for his behaviour and accept a lesser sanction of a final written warning.

The respondent therefore had no choice but to regard the fact that trust had been irreparably damaged and on that basis was entitled to dismiss the complainant.

The complainant was not unfairly dismissed but rather was dismissed wholly and mainly by reason of his conduct. In accordance with Section 6(4)(b) of the Unfair Dismissal Act the dismissal was not unfair.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.

Issues for Decision:

Dismissal is not in dispute. The issue for decision therefore is whether this dismissal was an unfair dismissal under the provisions of the legislation and if so what redress is appropriate in this case.

Legislation involved and requirements of legislation:

Section 6 (1) of the Unfair Dismissal Act states:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the decision.

This puts an onus on the respondent to show that there were substantial reasons which led them to take the decision to dismiss the complainant.

Section 6(4) of the Act states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

1. the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

2. the conduct of the employee,

3. the redundancy of the employee, and

4. the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

This requires an examination of the conduct of the complainant and in this particular case the respondent states that it is their belief that the conduct of the complainant was such as to justify their decision to dismiss.

Decision:

There is no major dispute about the incident on 6 October 2015. The complainant was suspended with pay that day.  An investigation was carried out on 8 October 2015 by a HR consultant whose services the company utilise as required.  His report went to both the complainant and the company’s HR Manager and as a result a disciplinary hearing took place on 14 October2015.  The respondent advised the complainant of his right of representation but the complainant stated at the hearing that he was unable to arrange same as the meeting took place in New Ross at 8.30am.  The incident was discussed with the complainant explaining his position in relation to the absence of a job card.  The complainant also raised the issue of his son’s car not being looked after properly.  At the end of the hearing the HR Manager informed the complainant that he believed that this was a serious matter and that he was considering issuing a final written warning to the complainant but that this was dependent on the complainant apologising to his line manager for his behaviour.  It was agreed to adjourn this meeting to allow the complainant reflect on the matter.  A further meeting took place on 16 October 2015 the result of which was that the complainant informed management that he would not issue an apology.  On 19 October 2015 the HR Manager wrote to the complainant dismissing him “as there was no sign of willingness on your part to restore reasonable trust and working relations with your manager through the giving of an apology.”  He was advised of his right to appeal this decision but did not do so.

It is clear that the complainant was dismissed for refusing to apologise to his manager. If the complainant had done so he would have been issued with a final written warning in relation to his conduct on 6 October  2015.  The line manager said in evidence that the insistence on an apology originated with the HR Manager and not with him.  The HR Manager stated in evidence that he did not know the complainant prior to receiving a report of the incident and did not look at his personnel file.  In particular he had not taken into consideration an extremely favourable appraisal completed with his line manager just days previously.  

The complainant for his part stated that one of the factors in his behaviour on the day and indeed during the disciplinary process was his sense of grievance in relation to his son’s car. As it transpires this issue was dealt with by his son and the faults with the car in question were rectified in another of the company’s facilities.  Moreover the line manager was away the week that the car was initially being dealt with.  It was therefore totally inappropriate for the complainant to vent his frustration on his line manager because of this issue.  He should also have utilised the internal appeal process.

It appears to me that if the original offence did not warrant dismissal then the refusal to apologise should not warrant dismissal either. I therefore find that the complainant was unfairly dismissed by the respondent. I also feel that the complainant contributed significantly to the situation for the reasons outlined above.  The complainant told the hearing of his ongoing efforts at mitigation.  Compensation being the preferred option of both parties I award the complainant the sum of €10,000.    

Dated:   12^th April 2016