ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001385

Complaint for Resolution:

Venue: WRC, Tom Johnson House, Haddington Rd, Dublin 4.

Date of Adjudication Hearing: 06/07/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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 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. 

Background

The Complainant was employed as a Rental Technician from 15^th July 2008 to 20^th August 2015. He was paid €2,056 per month. He has claimed that he was unfairly dismissed and has sought reinstatement.

Respondent’s Submission and Presentation

The Respondent provides specialist equipment to hospitals, nursing homes and private dwellings for the care of people with reduced mobility. Because it involves contact with children and vulnerable persons it comes within the definition of both “relevant work activities” and “relevant organisation”.

Under the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 requires that the organisation receives a vetting disclosure from the Bureau in respect of that person. On 21^st May 2015 the Respondent wrote to all appropriate employees for consent for An Garda Siochána to disclose the results of any check. It also informed the employees that the check would be done by an agent of An Garda. The letter enclosed an application form which had to be completed and returned by 3^rd June 2015. A sample of a correctly completed form was also attached, together with a stamped addressed envelope. The employees were advised that the results would be sent to the HR department and dealt with in the strictest confidence. They were advised that if they had any queries or concerns they should contact the HR team. The Complainant did not raise any queries or concerns. He did not complete or return the requested documentation. The HR team emailed him on 9^th June to advise that if the documentation was not received he would be invited to a meeting to discuss this. He responded that he had posted the documentation. On 1^st July the Respondent wrote a further letter to him requesting the documentation by 13^th July 2015. He returned an incorrectly completed form on 24^th July and it was rejected. The Respondent emailed him on 24^th July 2015 confirming that the form was rejected. He was then given another deadline of 27^th July 2015 to return it. It pointed out the changes that had to be made. The form was not received by the deadline. On 31^st July 2015 the Respondent received an incorrectly completed form. The Respondent emailed him on 31^st and advised that the form was still incorrect. They pointed out again what need to be changed and gave the deadline of 3^rd August 2015 for return. He advised that he would leave the completed form on his manager’s desk. His manager contacted him that he had not received the form and he got a response to the email advising that he was on leave till 10^th August 2015. A period of 9 weeks had passed and the form was still outstanding. He continued to refuse to follow the Respondent’s policy by not wanting the agent of An Garda to be involved in the process. On 7^th August he was invited to a disciplinary hearing on 14^th August 2015, rescheduled to 17^th August, which set out the allegations made against him. It also stated that one of the potential outcomes to the disciplinary meeting could be summary dismissal. He was accompanied by his union official. By that date he has still not completed the form. The outcome was that he was summarily dismissed. He was given the reasons in writing and given the right of appeal. He appealed the decision stating that he never refused Garda vetting. The appeal was heard on 30^th October He was accompanied by his union official. The decision to dismiss was upheld.

The Respondent has used a third party to vet employees with its “Safeguarding Policy and Procedure”. The Complainant had 6 written requests to properly complete and submit the form. The improper completion included extraneous writing on the form and deleting the authority of the Federation to submit the form. He stated at the appeal hearing that he did not want the application to go through a third party as he had been a victim of identity fraud, which was never supported by proof. He also advised that he had received Garda vetting but did not produce evidence. All other employees have followed and completed the company’s policies and procedures regarding vetting. When he attended the disciplinary hearing he was aware of the potential outcome. Despite this he never offered to comply with the company policy. All the allegations had been put to him in writing. Fair procedure has been applied in this case. Summary dismissal was a fair outcome as he had been given numerous opportunities to comply and he refused to do so. It was the deliberate nature of his behaviour in refusing to properly complete the form that led to his dismissal. He also misled the company about the number of applications that he made. He didn’t want to complete the form and so it was insubordination. This complaint is rejected.

Complainant’s Submission and Presentation:

The Complainant stated that the dismissal was harsh and unreasonable. The sanction of dismissal was disproportionate. He wanted a direct vetting with the Gardai. At no stage did he believe that he would be dismissed. He refused to sign up or give consent to the agency having his personal information.

He completed all sections of the form with the exception of the portion allowing the agent to access his personal information. He didn’t want just anybody doing the vetting. The letter of invitation to the disciplinary hearing stated the allegation of “serious / irrevocable breakdown in trust and confidence” that the company has in you. This suggests that the Respondent had already made up its mind. He was on leave when he received instructions by email on how to properly complete the form and he could not open the instructions. He replied to the requests to complete the form and could not understand why he was being pestered by the Respondent about non-compliance. When he arrived for the disciplinary hearing his shift was already given to another employee so it proved to him that the decision was already made. He offered to get Garda clearance directly himself but it was refused. He appealed his dismissal but it took 2 months to have the hearing. He has a history of clinical depression. The Respondent‘s Doctor’s recommendations were never acted upon. He had personal reasons for not wanting a third party involved in the vetting. The Respondent failed to consider alternatives to dismissal. He was out sick from the date of dismissal to 3^rd February 2016. He has applied for positions since then.

He has sought reinstatement.

Findings:

I note that the Respondent used an approved agent to carry out its vetting in order to comply with the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.

I note that the Respondent gave a detailed sample form and instructions on how to complete it correctly.

I note that they asked that if anyone had questions or concerns they should raise it with HR. I note that the Complainant did not raise any queries or concerns.

I note the conflict of evidence over the alleged failures of the Complainant to submit the properly completed forms.

On the balance of probability I find the Respondent’s evidence more convincing. Therefore I find that the Complainant failed to submit properly completed forms as requested by the Respondent.

I note that the Respondent made 6 requests to the Complainant to complete the forms correctly.

I find that the Complainant had not completed the returns correctly. I note that he omitted the date of birth, the place of origin, the employment details were not in chronological order, he removed consent from the agent and he stated that he had been convicted of a criminal offence on one form but didn’t give any supporting details as was required.

Overall I find that the Complainant deliberately misled the Respondent in the matter of how the form was filled out and returned.

I find that this led to considerable timewasting for the Respondent Company.

I note that he was the only employee not to complete the form correctly.

I note that he was advised initially that he would be called to a meeting for discussions and then he was called to a disciplinary hearing. I note that he was given in writing very clear allegations made against him and he was advised of the potential outcome of dismissal. Yet I note that he still refused to properly complete the form.

I note that he did not raise his alleged ill health at the disciplinary or appeal hearings.

I note that he did not substantiate his alleged ID fraud at the disciplinary or appeal hearings.

I note at the hearing that he sought reinstatement and advised of his willingness to complete the form yet he refused to do so at the disciplinary hearing and appeal hearing.

I find his offer to complete the form, if reinstated, to be unconvincing and disingenuous.

I note that the Respondent summarily dismissed him because they believed that his actions were that of insubordination.

I find that he deliberately misled the Respondent and he demonstrated that he never intended to give his consent. Therefore I must conclude that his actions were that of insubordination.

I find that his actions amount to a refusal to carry out a lawful instruction, which is a most serious matter warranting an appropriate disciplinary sanction.

I find under the circumstances the sanction of summary dismissal was warranted and correct.

I find that the dismissal was not unfair on substantive grounds.

I note that he was written to on 6 occasions offering alternative dates for completion of the form.

I note that the Respondent clearly set out in sample form how to properly complete the form. Therefore he had no excuse in not doing it correctly.

I find that the form was deliberately completed improperly, e.g. date of birth, origin, criminal record etc. in order to frustrate the process.

I find that he was made aware of the allegations made against him, the potential outcome of the process and the right of representation and appeal.

I do not accept that he did not know of the potential of dismissal as it was conveyed to him in writing.

I find that waiting over two months for the appeal was unacceptable.

I concur with the Respondent’s position that there was no alternative to dismissal in this case.

I find that summary dismissal was appropriate.

I find that the dismissal was not unfair on procedural grounds.

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 and 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.

For the above stated reasons I have decided that the dismissal was not unfair and that this complaint fails.

Dated:   16^th August 2016