ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000403

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

Date of Adjudication Hearing: 10/02/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

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:

The case did not come to court until 9 March 2015. In the two years between when he was caught and the time it came to court the claimant continued as an employee of the respondent. He concentrated on his job and his relationship with his immediate supervisors improved on a daily basis. He was complimented by the supervisor he reported to on his improved attitude and focus on the job and his standard of work.

The article which appeared in the local newspaper mentioned the respondent but this was not as a direct quote from the claimant but rather from his solicitor who, in response to a question from the judge as to whether he was gainfully employed, stated that he was an employee of the respondent.

As a result of the article the claimant was called in by the new area manager and was told he would be asked to attend a disciplinary hearing. After the hearing on 23 July he was dismissed. He appealed the decision and on 2 October he received confirmation that the decision to dismiss him had been upheld.

In the dismissal letter of 23 July the respondent said ‘you engaged in behaviour outside the workplace and outside working hours that seriously damages the working relationship between the company and you.’ Yet during this time the complainant’s relationship with his employer had consistently improved. There were absolutely no issues at work that suggested that he could not be trusted as an employee.

The letter also stated ‘Your actions and the subsequent reporting of same in the local newspaper, which made reference to BNM, has brought the company into disrepute’. This statement is also unacceptable as BNM had no adverse reaction to the complainant’s actions, nor did they have any loss of business, nor did it affect their daily workplace routines, nor in any way hinder their ability to carry out their daily functions. BNM stressed that they as a company were integrated into the community in the area and that the complainant’s actions had damaged them in the local community. No evidence was presented to support this claim and the union would argue that his actions had little or no impact on BNM’s standing in the community. In fact, the decision to dismiss would be far more damaging as people in the community who would have family working in BNM would prefer to see the company as a more understanding and benign employer.

In the similar case of Browne V the Mountview/Blakestown/Hartstown/ Community drugs Team (UD1447/2014) the tribunal noted;

• No complaint was made to relevant personnel within the respondent company
• The claimant’s record was generally misconduct free before the incident
• No apparent damage or harm was sustained by the respondent or to the quality of its services

The tribunal found the dismissal of the claimant was disproportionate and unfair.

Respondent’s Submission and Presentation:

The complainant was dismissed by reason of his conduct in circumstances where he was convicted under the Misuse of Drugs Act 1977 to 2015 of possession for supply of Class A drugs, namely 255 ecstasy tablets valued at €2,715.

The conduct of the complainant broke the necessary bond of mutual trust and confidence that must exist between an employer and employee. The complainant’s conviction and referencing of his employer at his criminal hearing brought the company into disrepute as is evidenced by the newspaper article referring to the respondent. These were of such a grave nature and concern to the respondent, a commercial state owned body, that it warranted his dismissal.

The complainant was afforded a disciplinary hearing of which he was advised in advance and at which he had union representation. After careful consideration the complainant was dismissed with immediate effect for reasons of serious misconduct sundering the necessary relationship of trust and confidence. The complainant was afforded an appeal. He was afforded full and fair procedures at all times.

The respondent relies on the EAT decision in Walker v Maplin Electronics Ltd, where the relevant test to be applied for determining whether a dismissal for alleged misconduct is fair was stated to be as follows;

‘Did the employer have a genuine or reasonable belief, based on reasonable grounds arising from a fair and adequate investigation that the employee is guilty of the alleged misconduct and finally whether the penalty of dismissal was proportionate to the alleged misconduct’

The respondent also relies on the judgement of Linnane J in Allied Irish Banks V Purcell ([2012] 23 ELR 189) where the relevant test for determining if an employer’s actions are reasonable in the context of disciplinary sanctions was stated to be as follows;

‘Reference is made to the decision of the Court of Appeal in British Leyland UK LTD v Swift and the following statement of Lord Denning MR

The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably take a different view.

It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.

If, as Denning MR said, a reasonable employer might reasonably have dismissed him, then the dismissal was fair. This standard was met by the respondent.

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:

Whether or not the dismissal was fair.

Legislation involved and requirements of legislation:

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 (6) of the Act states;

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

The burden is therefore on the employer to demonstrate that the dismissal is fair.

Conclusions:

The fact of dismissal is not in dispute. Furthermore, both parties accept that the procedures used were appropriate. The issue to be decided is whether, in all the circumstances, the decision to dismiss was justified.

In Crowe v An Post (UD1153/2014) the tribunal considered the issue of an employee’s conduct outside of work as follows;

‘There is considerable uncertainty as to whether an employee’s conviction for a crime committed outside the workplace would entitle the employer to dismiss the employee. In such circumstances the employer would argue that the bond of trust had broken down. The matter is not that straightforward. The basic principle is that usually an employer’s jurisdiction over misconduct of the employee ends at the company gate. A dismissal for misconduct outside the workplace can only be justified where there is sufficient connection between the crime committed and the employee’s work, in such a way that would render the employee unsuitable or capable of damaging the employer’s reputation. The guiding principle in cases involving misconduct outside the workplace is that the employer must be able to show a connection between the misconduct and the company’s operational requirements.

As a general rule the employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some legitimate interest in the conduct of the employee. An interest would normally exist where there is some nexus between the employee’s conduct and the employer’s business. The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to business, employee relations or affects the reputation of the company. The test is: has the out of work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer’s business? If it has then the employer has the right to institute disciplinary proceedings. Whether this gives the employer the right to impose sanctions, up to and including dismissal, will depend on the particular circumstances of each case. No two cases are the same and each case must be decided on its own particular merits.’

The claimant was employed on a seasonal basis as a general operative with the respondent. HIs appearance and conviction in court took place on 9^th March 2015. Shortly thereafter an article appeared in the local newspaper in which the respondent was named as his employer. The offence for which the claimant was convicted had taken place approximately two years earlier and the complainant had worked without any problems in the intervening period. At no stage during that period or after the publication of the article in the local newspaper did any member of the public contact the respondent to voice concern at the incident or to suggest that the reputation of the respondent was tarnished. There is no evidence that his continued employment would have affected co-workers or his supervisor negatively. In fact, his supervisor was supportive. The respondent did not contact the claimant about the incident until he himself initiated contact in the context of returning for the new season of work. The claimant worked as a general operative and could not reasonably have been considered to be the public face of the organisation. It is clear therefore, that there was no reputational damage to the respondent.

In deciding whether or not to imprison an offender it is well known that the courts may attach considerable weight to whether or not he or she holds a job. Being sent to prison may have the effect of losing him or her that job. If the court exercises leniency because of the fact of employment then a subsequent dismissal by the employer may frustrate the intention of the court. It is for the court to determine whether or not employment is relevant and I do not see that the offender should be penalised by his employer because he or she is asked such a question in open court and it is subsequently reported in newspapers.

The respondent did not show how the offence the complainant committed made him unsuitable for the seasonal general operative role. The crime was unconnected with the activities of the respondent.

Decision

I have investigated the above complainant and make the following decision in accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:

• the Complainant was unfairly dismissed

In accordance with s.7 of the Act, I order the Respondent to:

Reengage the complainant at the commencement of the 2016 work season

Dated:   12^th April 2016