MN107/2015, UD216/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                              CASE NO.

Declan West                                                                                                  MN107/2015

-          Claimant                                                                                           UD216/2015

against

JBS Group- James Boylan Safety Limited T/A Supply Of Safety, Uniform, Hygiene And

Specialist Products Products And Services, JBS Group- James Boylan Safety Limited

-          Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. McGrath B.L.

Members:     Mr M. Carr

                    Mr J. Moore

heard this claim at Monaghan on 17th December 2015

                                                and 8^th March 2016

Representation:    

Claimant:         Ms. Lauren Tennyson BL instructed by:

Mr Brendan O'Reilly, O'Reilly, Solicitors, Market Street, Cootehill, Co Cavan

Respondent:    Mr. Richard Grogan, Richard Grogan & Associates, Solicitors,

16 & 17 College Green, Dublin 2

The determination of the Tribunal was as follows:-

Background:

The respondent company imports, distributes and retails personal protective equipment, safety supplies and janitorial products. The claimant was employed from the 10^th August 2011 and was paid a weekly gross wage of €384.60. His employment was terminated on the 5^th January 2015 for gross misconduct. The respondent states the claimant’s employment was terminated due to the fact he had refused to comply with a reasonable management instruction which was a breach in the terms and conditions of his employment.

The respondent states that during certain periods of the year overtime is required to be carried out by all staff. It is stated in the employee’s terms and conditions of employment – “Must make themselves available for reasonable overtime worked if and when required. The company will endeavour to give at least one’s days warning of overtime and will give consideration to special circumstances relating to individual employees”.

The claimant contends he had informed his Line Manager (MS) he was unable to work the requested overtime due to personal reasons. MS was the person he took in instruction from and reported to and therefore he felt he had given ample notice to management of his inability to perform this request for overtime.

The Line Manager (MS), the General Manager (FC) and the Managing Director of the company gave evidence of behalf of the Respondent. The claimant and a former Supervisor of his gave evidence on respect of the claimant’s case.

Determination:

The Tribunal have carefully considered the evidence adduced. The Claimant brings this Unfair Dismissals allegation by way of a workplace relations complaint form dated the 23^rd February 2015 on foot of his employer’s decision to dismiss him for gross misconduct on the 5^th January 2015.

The Claimant had worked with the Respondent as a General Operative since 2011. It is common case that the workplace was one that expected overtime to be preformed on a compulsory basis, as and when required. In practice the company needed two periods of intense overtime early in the month of December and again in the summertime. Such was the requirement to perform overtime then the employees contracts of employment specify that where appropriate notice is given employees would be required to perform the overtime and exceptions to this expectation would only be given if special circumstances were provided and accepted.

All employees knew about overtime and all the employees knew how the company employer had a certain expectation.

On the 27^th of November 2014 the workforce was notified that up to three hours on three days of extra overtime hours would be required of all employees in the next week, the 2^nd, 3^rd and 4^th of December. The Claimant’s evidence was that it would be required on the 2^nd only. The Claimant was notified by MS the Operations Manager who was also the Claimant’s Line Manager. The evidence at this point is irreconcilable but the Tribunal does find that the Claimant suggested he would not be able to work on the 2^nd of December for his own personal reasons and MS indicated that he would have to address the matter with the General Manager (FC) or at the very least that the Claimant could expect that FC would take this matter up with him directly. The Tribunal finds as a matter of fact that the Claimant was not given permission to avoid the overtime on the 2^nd and that the Claimant had not provided a “special circumstance” and would have to speak to FC in some shape or form.

The next day the Claimant received a reminder with his payslip that he would have to attend on the 2^nd of December to do the overtime required of him. The Claimant gave evidence to the affect that he believed since he had already told his Line Manager of his difficulty then he could in effect ignore this reminder as being in some way not relevant to himself.

A number of days passed (including a weekend) and FC did not approach the Claimant and the Claimant did not approach FC. It is acknowledged that MS had told FC in a memo about a general disgruntlement on the floor and although the Claimant is specifically mentioned there was no suggestion contained in the memo that FC needed to talk to the Claimant.

The 2^nd of December came and went and the Claimant did not do the overtime instead clocking off at his usual time of 5p.m.

On the 3^rd of December having been informed the Claimant had not rallied to the company’s request to work overtime the General Manager (FC) called the Claimant to a meeting and suspended him for his failure to work the overtime hours of 5p.m. to 8p.m.

There is some conflict as to whether the Claimant gave an explanation as to his absence as this point in time but the Tribunal has to note that there is no record as to any reasons other than “prior arrangements” or “personal reasons”. It is worth noting that had the explanation provided to the Tribunal at the hearing been provided at an earlier time things might have developed in a very different way.

Mr. FC described the hierarchy of the management within the respondent company as being “flat”. This description was given by way of an explanation as to how it came to pass that not only did Mr. FC formulate the complaint of insubordination and conduct the investigation into the alleged complaint but also went on to conduct the disciplinary meeting and deliver the sanction.

Contrary to anything that might be considered good practice the Tribunal notes Mr. FC’s comment at the end of his investigation letter dated the 15^th December 2014 that the allegation of gross misconduct is substantiated and the company would be taking the appropriate action.

Even if this alone didn’t give rise to a serious procedural flaw when compared with the astounding fact of a statement of dismissal being taken out and read aloud as part of the final disciplinary meeting clearly demonstrates a pre-determination on the part of FC which is optically unsatisfactory and legally unsound.

On the other hand and looking at the facts that gave rise to the final decision, the Tribunal does recognise the Claimant did engage in a wilful act of insubordination when he opted not to work the overtime when he knew or ought to have known that without providing the “special circumstances” required he was liable to be sanctioned for a breach of a contractual obligation stated in his contract of employment. The gross misconduct in this workplace handbook includes “the failure and refusal to comply with a reasonable instruction” and the company is entitled to conclude that the failure to do overtime and the failure to have a conversation with the General Manager maybe regarded as a refusal to comply with a reasonable instruction.

On balance the Tribunal has to find that the Claimant was unfairly dismissed but only insofar as there were procedural irregularities that brought the Claimant to the point of dismissal and in compensating the Claimant the Tribunal is having regard for the fact that the Claimant contributed hugely to the net result.

Accordingly, the Tribunal awards the sum of €8,000.00 (eight thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.

Loss having been established the Tribunal awards the sum of €769.20, this being two weeks gross wages, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)