ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000332

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

Date of Adjudication Hearing: 05/02/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

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:

The Complainant's case is that the Respondent, without any substantive justification or fair procedures, summarily dismissed the Complainant in a manner that amounts to an unfair dismissal.

Furthermore, it is contended that, on termination, the Complainant did not receive statutory minimum period of notice or payment in lieu thereof.

During the Hearing, the Complainant's representative set out the following reasons in support of the complaint of unfair dismissal:

1. The Complainant was innocent of any disciplinary wrongdoing in the course of his employment with the Respondents.

In support of this point the Complainant's representative stated that while the Respondent's Company Employee Handbook provides an non-exhaustive list of examples of gross misconduct, none of these includes "sleeping while at work", which was the alleged offence at the centre of the Complainant's dismissal.

While denying that the Complainant was asleep whilst at work, his representative stated that such conduct could not be considered as amounting to gross misconduct warranting the section of summary dismissal.

2. The Complainant attempted to raise grievances, which the Respondent refused to address, in respect of matters which ultimately contributed to the Respondent's decision to dismiss the Complainant.

                The Complainant's representative informed the Hearing that he (the Complainant) suffered a workplace injury in January 2014, when lime dust came in contact with his face and eyes. The Complainant maintained that the injury caused him to become susceptible to eyestrain, particularly when subjected to inappropriate lighting. The Complainant maintains that the lighting in the control room where he was stationed on the premises, and in particular the yard lights and natural light located outside the control room windows, caused him severe difficulty.

The Complainant contended that he repeatedly attempted to informally raise a grievance in respect of this situation and requested that the Respondent provide window blinds. However, the Complainant maintains that the Respondent repeatedly dismissed his complaint/requests in this regard. Consequently the Complainant maintained that, due to the Respondent's failure to address the complaint, he (the Complainant) was required to adjust the lighting in the control room himself by blacking out the windows with black bin liners and adjusting the lighting in the room.

The Complainant's evidence indicates that on 29 May 2015 he commenced a 12 hour shift in the control room at 8:00 PM. He further states that due to the failure of the Respondent to address his grievance, he blacked out the windows with the use of bin liners and adjusted the lighting in the control room. The Complainant stated that the Respondent's Operations Manager arrived at the premises at 5:20 a.m. the following morning. The Operations Manager noted that the control room windows were covered with bin liners and that the control room door was locked. According to the Complainant's evidence the Operations Manager immediately and aggressively accused the Complainant of being asleep while at work, an allegation which the Complainant denied.

Submissions on behalf of the Complainant were made to the effect that the suggestion in the Investigation Report carried out by the Respondent, that the Complainant admitted to sleeping while on duty, only came about because of the aggressive manner in which the Operations Manager put the contention to him.

3. The Respondent failed to properly follow its own disciplinary procedures.

It was submitted on behalf of the Complainant that the Respondent's Employee Handbook contains a section on disciplinary policy and procedure. It is contended on behalf of the Complainant, that the Respondent failed to follow the stages of disciplinary action and the definitions of gross misconduct as set out in the aforementioned procedures.

4. The disciplinary procedures employed by the Respondent were unfair and/or inadequate.

This point is covered by submissions on behalf of the Complainant as set out in the sections that follow hereunder.

5. The Complainant was dismissed by the Respondent without any/adequate substantive grounds to justify his dismissal.

Representations made on behalf of the Complainant contended that the Investigation Report presented to the Disciplinary Panel demonstrated that, not only were their factual inconsistencies and conflict as to what exactly occurred and whether the Complainant was asleep whilst on duty, but there were also a number of legitimate explanations that addressed the very foundations of the allegation that the Complainant was asleep whilst on duty.

6. The Complainant was not afforded any/adequate fair procedures in the course of his dismissal.

Submissions on behalf of the Complainant, by his legal representative, contended that the Respondent failed to provide the Complainant with adequate, fair procedures. It was submitted that the Complainant was not provided with the reasons for the determination of the disciplinary hearing conducted by the Respondent's Managing Director. It is further contended that the Managing Director was presented with a report which demonstrated factual inaccuracies and conflict, explanations as to circumstances that provided the foundation of the allegation and mitigating circumstances. However, without providing any reason whatsoever, the Managing Director concluded that the Complainant was in fact guilty of the allegation.

It was further submitted that this failure to provide reasons for the determination amounted to a violation of the Complainant's right to fair procedures. Further, it was submitted that this failure made it impossible for the Complainant to appeal on the basis of facts and, in essence, limited his appeal to an appeal on the basis of severity.

7. The Complainant was summarily dismissed by the Respondent.

Submissions made in support of this contention are set out in sections both above and following.

8. The sanction of summary dismissal was disproportionate.

It was submitted on behalf of the Complainant that there must be proportionality between the incident giving rise to a disciplinary sanction and the sanction itself if same is to be relied on as grounds for justifying the dismissal of an employee. In presenting this aspect of the Complainant's submission, his representatives referred to a number of cases which upheld the view that a disproportionate sanction in respect of an employee's misconduct will be considered an unfair dismissal within the meaning of the Acts. (Cases referred in this regard included: Bolger v Dublin Sport Hotel Ltd (UD 45/85) and Fitzpatrick v Superqiunn Ltd (UD 452/1984)

In this regard, the Complainant's representative made specific reference to the case Samantha Marshall v Conduit Enterprises Ltd. (UD 1293/2013). It was submitted on behalf of the Complainant that the circumstances of this case, in which the Complainant (Ms Marshall) was dismissed for gross misconduct as a result of falling asleep while on duty as an emergency 999 call operator, is analogous to the case being heard here. In the referenced case the Tribunal found that the dismissal was unfair, on the grounds that, despite potentially serious ramifications of an emergency call being dealt with, such a sanction was disproportionate.

9. There was no consideration of a lesser sanction.

Submission on behalf of the Complainant contends that the Respondent completely failed in its duty to consider a lesser sanction or select a proportionate sanction. On the contrary, it was contended that, without any consideration, discussion or reference to the Complainant's exemplary disciplinary record or the numerous options available to it pursuant to its disciplinary procedure, the Respondent selected the most severe and disproportionate sanction available to it, that of dismissal for gross misconduct.

1. The appeal procedure employed by the Respondent was unfair and/or inadequate.

The Complainant's representative made reference to the fact that the Appeal Hearing, which upheld the Managing Director's decision to dismiss, primarily relied on the alleged "repeat nature" of the Complainant's conduct. The Complainant maintained that this was his first disciplinary offence and that he was not the subject of a disciplinary offence that he could possibly repeat.

It was further contended that any pre-existing disciplinary offence, finding or sanction was not put to the Complainant at either the Disciplinary Hearing or the Appeal Hearing. Consequently, it was submitted on behalf of the Complainant that this amounts to failure to provide a proper appeals mechanism and amounts to a violation of the Complainant's right to fair procedure.

1. The Respondent failed to provide statutory notice or payment in lieu thereof.

It was submitted on behalf of the Complainant that the Respondent failed to provide him with the statutory notice period or payment in lieu thereof on the basis of the exceptions outlined in section 8, of the Minimum Notice and Terms of Employment Act, 1973.

In concluding the submission on behalf of the Complainant, his legal representative presented a legal basis for the claim in relation to (a) the obligation on the employer to justify dismissal, (b) the obligation on the Respondent to act "responsibly" if dismissal is to be justified on the basis of the employee "conduct", (c) the obligation on the employer to afford fair procedures to the employee and (d) the proportionality of the sanction and consideration of a lesser sanction.

Respondent’s Submission and Presentation:

The Respondent's submission commenced with details of the incident at the centre of the Complainant's dismissal. The Respondent outlined that on 29 May 2015, the Operations Manager for the Respondent arrived at the location in question at approximately 5:20 a.m., in order to prepare for a meeting later that morning. The overnight site operator on that occasion was the Complainant. The Operations Manager found the control room door locked and bin liners obscuring the windows. He rang the site operator's mobile phone and got no reply on two occasions. Shortly after, the Complainant came out of the darken control room where no lights were turned on.

The Operations Manager and the Location Manager met with the Complainant at the end of his shift, at approximately 8:00 a.m. The evidence of the two managers involved suggests that the Complainant admitted that he was asleep on that and other nights. At this meeting the Respondent was suspended with pay pending an investigation into the incident.

The Respondent provided evidence of a report from a driver from a different company, who contended that, two days earlier, on 27 May 2015, he (the other driver) found the control room locked and the windows blackened out. It is contended that the Complainant was on duty on this occasion as well.

The Respondent presented evidence to the Hearing to the effect that on 2 June 2015 the Complainant was invited to an investigation meeting into the events of 29 May 2015. This meeting was held on 11 June 2015, at which the Complainant was accompanied by his partner.

On 19 June 2015, the Complainant was provided with a copy of the Investigating Team's Report and invited to a Disciplinary Meeting to be held on Tuesday, 23 June 2015. This meeting was conducted by the Respondent's Managing Director and their Sales Manager. The Complainant was provided with the opportunity to be accompanied/represented at this meeting but he opted to proceed without representation. The Respondent contends that the Complainant's demeanour and responses at the meeting in question seemed to demonstrate an indifference to the proceedings.

The evidence presented to the Hearing shows that the team conducting the Disciplinary Hearing deemed that the incident of 29 May 2015 constituted gross misconduct on the part of the Complainant and warranted summary dismissal with effect from 26 June 2015. The Complainant was advised of his right to appeal the decision.

The Complainant exercised his right to appeal and a meeting in this regard took place, following some initial postponements, on 21 August 2015. The records show that the Complainant again attended without representation. The decision to dismiss for gross misconduct was upheld by the appeals panel and the decision in this regard was confirmed to the Complainant on 7 September 2015.

Having set out the facts of the incident and the disciplinary procedures as set out above, the Respondent made the following submissions in support of its contention that the decision to dismiss the Complainant was fair:

1. The Complainant's dereliction of his duties and responsibilities put the company's facility in jeopardy. The control room must be manned 24 hours a day for the safe operation of a technical and volatile process. By falling asleep at his post, the Complainant demonstrated an unacceptable attitude to the importance of his duties.

2. Upon questioning by the Respondent's Operations Manager, the Complainant admitted to sleeping on the job on several occasions, which compounded the seriousness of the misconduct. The Complainant later said he felt pressed to make that admission but he did not raise this at the Disciplinary Hearing on 23 June 2015.

3. The Complainant was given a copy of the Investigating Team's Report four days in advance of the Disciplinary Hearing. It is contended that he had sufficient time to rebut the contents therein if appropriate.

4. At the Disciplinary Hearing on 23 June 2015, the Complainant was asked if he understood the allegations against him. He said that he did. He was offered time to reread the Report if he needed to, but he declined this offer. When the Complainant asked to see copies of the shift reports, the Managing Director said he would get copies immediately but he (the Complainant) then withdrew the request.

5. The Complainant was given ample opportunity to state his case but his ultimate answer was: "No, I leave it at that."

6. The Complainant appealed the decision to terminate his employment and was given another opportunity to put his case. According to the Respondent, the Complainant's appeal turned on the severity of the sanction. However, the Respondent contends that given the gravity of what occurred and the repeat nature of the conduct, the company had no option but to determine the employment relationship.

7. The Complainant was afforded his full rights and entitlements under due process and natural justice. He was made aware of the allegations against him; given time to prepare a defence or a rebuttal; given the right to representation (which he declined at the Disciplinary Hearing and the Appeal Hearing); and was afforded an impartial hearing.

8. The Respondent submits that in all of the circumstances, the dismissal was not unfair and is consistent with provisions of section 6 (4) (b) of the Unfair Dismissal is Act (1977), as amended.

In conclusion, the Respondent submitted that, in the light of the evidence presented the company's actions were fair and reasonable in the circumstances.

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:

The matter before me for decision is whether or not the Respondent’s decision to summarily dismiss the Complainant on the grounds of gross misconduct was a fair decision.

Legislation involved and requirements of legislation:

The primary legislation to be considered in arriving at my decision is the Unfair Dismissals Act 1977

Decision:

Based on the extensive submissions made on behalf of both the Complainant and Respondent and the significant amount of supporting documentary evidence provided, I am of the view that there are three key issues to be determined in this case. Those issues are (1) the facts of the case, (2) the processes/procedures applied by the Respondent and (3) the sanction imposed. Based on a detailed consideration of all the evidence adduced at the Hearing, I set out below my findings in relation to these three issues:

1) Facts of the Case:

The basic facts surrounding the incident on 29 May 2015 do not appear to be in dispute. The Complainant was working a 12 hour night shift which had commenced 8:00 p.m. the previous evening and was due to conclude at 8:00 a.m. that morning. When the Operations Manager arrived at the plant at approximately 5:20 a.m. he found the outside rear door locked and bin liners on the windows of the control room. He then called the Complainant twice on the site mobile phone. The phone was not answered on either occasion. The Complainant then opened the door to the Operations Manager.

Based on the evidence adduced at the Hearing, it is clear that the Complainant had taken significant and deliberate steps to block out the light from the control room. The evidence further suggests that when the Complainant opened the door of the control room to the Operations Manager the room in question was in darkness. All of this clearly suggests that, on the balance of probability, the Complainant was asleep in the control room when the Operations Manager arrived at the site, having initially created the conditions which would facilitate his sleeping.

The Complainant contends that the blacking out of the control room windows by using liners was necessitated by a medical condition which existed in the aftermath of a workplace accident on 9 January 2014. The evidence adduced in this regard at the Hearing, would indicate that the Complainant did receive lime in his eyes during an incident on 9 January 2014. However, the report relating to that incident would suggest that the Complainant was back at work on the same day and that he signed a statement indicating he was "okay" following his treatment. In addition, no evidence existed with regard to the Complainant raising any health issues arising from the incident, during the remainder of 2014.

There does not appear to be any evidence among that provided to the Hearing which would support the Complainant's contention that his condition continued and was the basis for his actions, some 18 months later, when he blacked out the windows in the control room on the night in question. The evidence further suggests that no formal record exists of a request from the Complainant in relation to the installation of blinds in the control room. However, the evidence suggests steps were taken by the Respondent in relation to the readjustment of the outside yard lights which prevented them from shining into the control room.

Taking all the above into consideration, I am satisfied that, based on the balance of probability, the Complainant took significant and deliberate steps to create an environment within the control room on the night question which were conducive to him sleeping. I am also satisfied that, on the balance of probability, the Complainant was asleep when the Operations Manager arrived on site.

2) The Processes/Procedures applied by the Respondent:

From the uncontested evidence presented at the Hearing, I find that the processes/procedures applied by the Respondent in this case consisted of the following:

• An incident report compiled by the Operations Manager who encountered the situation, as detailed above, on his arrival at the Respondent's plant on the morning in question.

• An initial meeting conducted by the Operations Manager and the Location Manager with the Complainant at the end of his shift on the morning in question. At this meeting the Complainant was placed on suspension with full pay pending an investigation of the matter.

• An investigation conducted into the incident by a separate Investigating Team, consisting of the Finance Director and Technical Manager for the Respondent.

• An Investigation Report compiled by the Investigating Team, which was provided to the Complainant four days in advance of a Disciplinary Meeting.

• A Disciplinary Hearing conducted by a separate Disciplinary Panel, consisting of the Managing Director and Sales Manager.

• A letter, containing the outcome of the Disciplinary Hearing, was sent to the Complainant two days after the Hearing. This letter also advised the Complainant of his right to appeal the decision of the Disciplinary Panel.

• An Appeal Hearing was conducted by an external party, who issued his decision, upholding the original decision of the internal Disciplinary Panel, some 12 working days after the Hearing.

In addition to all of the above, the Complainant was at all stages of the process informed of his right to be accompanied/represented at each meeting/hearing along the way. This extended to the Respondent bringing the matter of the Complainant's disciplinary situation to the attention of a Trade Union representative in the bigger, sister plant. However, the Complainant appears not to have engaged the Trade Union in this regard based on alleged comment by the Trade Union representative to the effect that there was no point in contesting the disciplinary decision.

In submissions on behalf of the Complainant, his legal representative suggested that the Investigating Team had offered opinion and/or influenced the outcome of any disciplinary measures resulting from the allegation. Having carefully considered the report of the Investigating Team, it is noted that the comprehensive nine page document contains a total of six findings. In a detailed review of each finding it is difficult to see where the Investigating Team engaged in offering opinion or in attempting to influence the outcome of any subsequent stage in the process.

The Complainant's legal representative raised a number of issues/incidents where he (the Complainant) disagreed with certain aspects of the Investigating Teams findings. However, the Investigating Teams Report shows that all such matters were considered in the conducting of the Investigation. The fact that the Complainant's representations were not accepted by the Investigating Team in each case cannot be taken as evidence of an unfair or flawed process.

Taking all the above into consideration, I am satisfied that the Respondent conducted a fair and balanced process which included investigation, disciplinary hearing and appeal process, which were carried out by separate, independent personnel. I am further satisfied that the rights pertaining to employees in such circumstances were all afforded to the Complainant in this case.

Consequently, I find that the Complainant's contention that he was not afforded any/adequate fair procedures in the course of his dismissal is not upheld.

3) The Sanction imposed:

The Respondent submitted that the Complainant's falling asleep at his post constituted a dereliction of his duties and responsibilities, which placed their facility in jeopardy and demonstrated an unacceptable attitude to the importance of his duties. Consequently, the Respondent determined the Complainant's behaviour/actions constituted gross misconduct.

In submissions on the Complainant's behalf, his legal representative contended that the sanction of summary dismissal was disproportionate in the circumstances. In support of this contention, the Complainant's legal representative claimed that the Respondent: failed to consider the Complainant's exemplary disciplinary record, failed to consider the options available under their own disciplinary procedures and failed to consider alternative, less punitive and more proportionate sections. Finally, the Complainant's representative's made specific reference to the recent Employment Appeals Tribunal case, involving an emergency 999 call operator who fell asleep whilst on duty.

In the decision in the case in question (Samantha Marshall v Conduit Enterprises Ltd. UD 1293/2013), the Tribunal, in a two member majority decision, found that the Complainant in that case had not been guilty of a culpable act. The facts of the case showed that the Complainant was suffering from hay fever and had taken medication. In addition, it was found that, on the occasion in question, the air-conditioning had been turned off in the room in which she was working.

Consequently, the Tribunal in the Marshall case found that the single incident on which dismissal was based had been caused "inadvertently" and as a result considered the sanction to be disproportionate. Based on the lengths to which the Complainant in the current case went to create an environment in which he could sleep, I am satisfied that the classification of the incident as being inadvertent clearly does not apply. Therefore, the basis for the decision in the Marshall case cannot be applied in the current case.

It is clear from the consideration of the documentary evidence submitted in support of the Respondent's case, that their decision in considering summary dismissal as an appropriate sanction in this case, was significantly influenced by the position of the Environmental Protection Agency (EPA) in relation to the requirement to have the plant manned on a 24-hour basis. Documentary evidence presented to the Hearing demonstrates that the licence issued by the EPA in March 2007 to the Respondent in relation to the operation of the plant required that "... A manager or a nominated, suitably qualified and experienced, deputy shall be present on the installation at all times during its operation."

Further documentary evidence submitted by the Respondent shows that a further request in this regard was made by the Respondent to the EPA in November 2008. However, the EPA were very specific in their response on that occasion when they clearly stated "The Agency cannot agree to your request to allow for unmanned night time operation of the installation." Consequently, based on this evidence, I am satisfied that it was not unreasonable for the Respondent to conclude that the Complainant's sleeping while on duty exposed them to serious risk with regard to the EPA requirements in this regard.

In considering the representations made by both the Complainant and the Respondent in relation to the proportionality of the sanction of dismissal in this case, I took into consideration two relevant cases in this regard.

Firstly, in the case of Gustave Bigaignon v Powerteam Electrical Services Ltd. [UD939/2010] [2012] 23 E.L.R 195, the Tribunal determined that it was not their task to consider what sanctions the Tribunal itself might impose but rather, whether the reaction of the Respondent and the sanction imposed was within the range of reasonable responses.

The case of Noritake (Ireland) Ltd. v Kenna [UD88/1983] sets out the precise terms for the test to be applied as to whether a sanction was reasonable or not. In that case the Tribunal considered the matter in the light of three questions:

1. Did the company believe that the employee misconducted himself as alleged? If so:
2. Did the company have reasonable grounds to sustain that belief? If so:
3. Was the penalty of dismissal proportionate to the alleged misconduct?

Having carefully considered all of the evidence adduced at the Hearing in relation to the current case before me, I determine that the answer to the three questions posed above is in the affirmative and I further find that the sanction of dismissal for gross misconduct falls within an acceptable range of reasonable responses in the circumstances.

Consequently, based on the above I find that the Respondent's decision to dismiss the Complainant was fair and the latter's claim in this regard is not upheld. Based on this decision I also find that the Complainant's claim in relation to notice also fails.

Dated:   8^th April 2016