ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002535

Complaint for Resolution:

Date of Adjudication Hearing: 10/06/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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.

Respondent’s Submission and Presentation

The Respondent operates a meat processing plant of 600 employees . The complainant commenced work as a General Operative in July 2001. He worked in all aspects of the business from meat production lines, packing, Boning and Abattoir.

The complainant had been given a five week period of annual leave to facilitate a return trip to Egypt from Late June to late July in 2015.Following his return, issues arose on the production line where the complainants supervisor Mr AB challenged his speed on the line, stating that he was too slow and informed him that he was being moved to the “checking line”.

On July 31, the complainant was placed back on the meat production line by a different supervisor. When Mr Ab discovered this, he met with the complainant and requested he move to the “checking line “The complainant refused stating he was unable to do this work, as he got a pain in his side if he was standing for an extended period .This resulted in the complainant coming off the line abruptly, which caused the company serious concerns. The complainant was then offered an alternative posting to the packaging area but refused and wanted a posting in either the Abattoir or Boning Hall, but there were no vacancies .The respondent heard that the complainant had an interpersonal difficulty with a supervisor and advised him to activate the Grievance Procedure. The complainant left the factory and went home.

There were further meetings on the issue of the complainants work location within the factory and training for the checking job on 6^th and 10^th August. On August 13 the complainant was returned to the meat production line following an incident with a supervisor. Feedback on the complainant was positive.

The Production Manager, Mr BC met with the complainant on 21 August and heard the complainant set out his issues with Mr Ab , a request for a revised work pattern and his request for payment for the days missed through the July 31^st and August 12 matter . Mr BC put three preconditions to the complainant as grounds for recoupment of lost earnings and to stabilise the unease with the complainants work. The complainant agreed to a covenant with Mr BC.

• To come to work each day
• To work to the best of his ability
• To obey the supervisors

The complainant received back pay for the incidents of July 31 and August 12.

On August 27^th at 13.38 hrs, Mr AB sent an email on a statement of concern of the deficits in the complainants work to Mr BC. There were three areas of concern highlighted:

• Late start times and extended break time.
• Clarification of the standard required on the meat production line
• Non adherence to standard procedures of checking finished products, where production was ceased pending an entire batch re-check.

This was accompanied by a statement that the complainant had been on that line on both August 26 and 27 and the Supervisor requested a recheck of product.

The company acted on this stated concern immediately and requested a meeting with the complainant to explain his side. The complainant sought an interpreter and a colleague was providing from the floor to interpret .Mr DE. The respondent told the complainant about the 2.5hr extra hours which needed to be worked by the Unit to recheck the batch. The complainant stated that he was ill and requested an ambulance .MR BC told him that an ambulance would be costly if it did not meet the emergency criteria rating . The complainant declined an ambulance .Mr BC counselled the complainant on the need for him to do his job properly as the company was running out of alternative postings for him. Training would be provided, if needed, but a good performance was required. The respondent had a responsibility to the entire workforce .

The complainant said he would wait and meet the General Manager .Mr BC advised him to seek a medical opinion if he was unwell and a staff member drove him to the doctor, who advised a Hospital review. The company ordered a transporting taxi. The complainant commenced sick leave citing anxiety and stress related symptoms. Sick certificates were submitted which referred to an anxiety followed by a flu condition until the last week of September 2015.

On foot of this, the respondent commenced an interview process with the operators and some Supervisors on the complainant line to ascertain:

1 Whether the complainant was overworked?

2 Whether the complainant was unduly dealt with?

The feedback from these interviews caused the respondent to identify that the complainant’s work ethic on the lines was not acceptable. He was notified of being suspended on full pay from September 7^th pending an investigation into his conduct. The complainant continued on sick leave and was further advised of his suspension and allegations raised against him on 7^th October. An investigation was chaired by Ms MC, an external Hr manager from another plant on 15^th October 2015. The complainant was provided with the investigation report and witness statements.

This was followed by a Disciplinary hearing on 18 November, 2015, where the decision was taken by Mr SM to dismiss the complainant in a letter dated December 1^st 2015. The complainant appealed the sanction before the respondent Hr Director, Mr SH on 16 December, 2015. On foot of allegations made by the complainant at this hearing, Mr SH deferred his decision making pending further submissions from the complainant and Mr BC .On 13^th January, 2016 the appeal decision upheld the dismissal.

The respondent submitted that the dismissal resulted wholly from the complainant’s actions which were held to be in breach of company policies. The respondent was unable to tolerate the complainant’s behaviour as they had a duty to manage a large workforce and his behaviour was counter productive .Fair procedures were followed where the complainant was afforded an opportunity to present his case with representation and interpretation was offered. The respondent was clear that the company had the prerogative on the “harshness” of any sanction in a disciplinary setting.

They relied on case law

Brewster V Burke (1978, unreported High Court Judgement)

White v Cadbury Ireland, ltd

Pacelli V Irish Distillers

Evidence of Mr BC, Production Manager.

He had worked with the complainant from 2004. Mr BC returned from annual leave in August 2015 and met with the complainant. He was aware of the “ walk off the line “ episode and sought the complainants co-operation going forward to try to smooth things over .They shook hands on an agreement to improve performance and Mr BC paid the complainant for time lost through the time spent away from the plant . In answer to questions from the complainant’s representative, Mr BC confirmed that he had cause to have a lot of discussions with the complainant over the years on his work performance, but they were not always documented.

Evidence of Mr SM, Disciplinary Hearing and decision to dismiss:

He had worked as a HR Manager for 7 years and conducted the disciplinary hearing on 18 November 2015 in the company of the complainant, a translator and a note taker. He prepared for this by requesting the file. He interviewed the complainant and offered him an opportunity to submit any relevant information. He had listened to the complainant and found him inappropriate in his responses .He struggled in his decision making and took account of his longevity of service and his previous employment record with the company but had to balance it against the difficulties suffered by the production unit as a consequence of his behaviour He told the hearing that he had taken account of the serious concerns raised by his fellow workers and remarked that ,every individual worker is reliant on the other in a production setting and there were 230 employees in the section .Leaving a production line without permission is “mortal sin” for the company and for the workers as the team are down money if someone walks off .

Mr SM stated that his findings led him to the view that that returning the complainant to the site was untenable .The respondent had been patient and lenient, therefore, the decision to dismiss was just, right and   in reality his only option, in response to the gross misconduct and breakdown of his relationship with his supervisors cited.

He wrote to the complainant on 1 December confirming the dismissal and advising of the appeal mechanism to be followed

Conduct of the Appeal Hearing

The appeal was conducted by Mr SH, Director of HR for the company. The complainant was represented by Dr AH as he was at the hearing. The Appeal commenced on 16 December and paused to consider a further examination of allegations made by the complainant in addition to an assessment of the complainants training records over Christmas and New Year. The complainant made a supplementary response on 8^th January 2016. There were further submissions from Mr BC and MSc before the findings of the appeal were shared on 13 January, 2016, where the decision to dismiss was upheld.

Complainant’s Submission and Presentation:

The complainant’s representative explained that his client was compromised by having to choose to support his family rather than employ a Lawyer. He attended the hearing to support the complainant (The complainant’s legal representative came off notice on the evening before the hearing). The representative stated that the respondent had been totally unfair towards the complainant and he should at the very least been sent for an Occupational Therapist consultation and furthermore that a final written warning and subsequent second chance should have been attempted rather than a dismissal.

The complainant had worked for and was loyal to the company for 14 years when he was unfairly dismissed .The company failed in their duty of care towards him. A number of incidents were not given sufficient weighting by the company in their considerations of disciplinary sanction.

1 August 10, 2015, positive feedback from checking line manager

2 A supervisor threatened to stab the complainant at work on August 12^th.

3 The complainant was bullied, harassed and lost his dignity. His family had also suffered.

Evidence of the Complainant

The complainant had prepared his presentation on an” aide de memoir” and I allowed him to consult with this to assist his evidence.

He described himself as an honest person and contended that he had always worked to the best of his ability. In March 2014, he requested to change his line to another duty. He had a disagreement with Mr AB and eventually wrote a statement that he would behave.

He had worked in the boning hall for two years, before he moved on to packaging. When the company lost a major customer, his revised hours of work incorporated a delayed start time , this caused him financial worries and he took the matter up with the general manager .From that point on, he believed that he was branded a troublemaker .

In 2008, he moved to meat production, but found the noise associated with operations very loud. He was involved in an accident at work, where a machine fell on him, causing him to spend three weeks in hospital.

He returned to the meat processing line, but found the work very physical, in terms of lifting 24 kg boxes. He returned to the “mincing area” which he liked but had conflict with his line manager when his holidays, which had been approved and booked, were suddenly threatened by Mr AB. He was eventually permitted to go.

Things deteriorated on his return when first his rota changed and then his duties changed .He requested a change and was offered packaging (this was continuous work without a break) and the validation of finished product job. He didn’t want to take that posting as he had had a threatening encounter during a power cut with a supervisor on 12 August, where the supervisor threatened to stab him. He reported the issue to management and was relocated to work on another part of meat production. The production line was going too fast and for 9 days from 13^th August -27^th August, other staff jeered and laughed at him. He contended that he was treated harshly by the respondent. He found it hard to concentrate and his work performance was affected. He understood that he was going to be sacked. He submitted that he was placed under pressure to clean the area around the production line.

He recalled the 27^th August and said that Mr BC and ML (HR) had threatened him if he went to hospital and that he had been shouted at for being 2 minutes late. He was hospitalised for 2 days then cleared to return to work but was placed on suspension on full pay from September 7^th.

The complainant had a clear view that he was unwanted at the company. He had requested a change of line in writing in Arabic as he hated the checking line; he was disappointed as he had seen others get transfers.

In response to the respondent’s questions, the complainant confirmed that the sole meeting where he raised the “knife issue” was on appeal of his dismissal. He agreed that the company had been good to him at the beginning of his employment but that had not lasted. He didn’t agree with the respondent when it was put to him that his shift was changed to mornings at his request, or that Mr BC bringing him home from hospital and paying him for hours not worked was paid as a testament to the company treating him well.

He contended that he had made a complaint of bullying to Mr BC on August 24^th but he was not heard .He confirmed a training record from 4/5/11 and 20/9/12. He told the hearing that he did not understand the reason why he lost his job? He contended that he had been refused a reference from the company. At the time when the company had problems with his performance, the company was aware that he was attending Doctors and had been prescribed anti-anxiety medication. The company completely mistreated him as a worker.

He had not worked since his dismissal and received job seekers benefit. He submitted that he wanted his job back. He agreed to furnish the WRC with proof that his medical condition had been notified to the respondent and that he had sought support for this in advance of dismissal.

The complainant’s representative concluded the presentation by stating that he disputed the evidence presented by the respondent and would seek further legal advice when he received the decision. He confirmed again that he attended the hearing as a support for the complainant.

Post Hearing Submission

The complainant furnished further documents two weeks after the hearing, which were copied to the respondent.

These documents confirmed the efforts made by him to find work and undertake training. The sole document submitted which pointed to a request for accommodation in the workplace was a request from the complainants GP in May 2013 for accommodation with a personal health issue unrelated to anything that the complainant spoke about at the hearing

I received a response from the respondent to these documents on July 20^th. In this they confirmed that they were prepared to issue at statement of employment to the complainant, if he needed one. They submitted that the medical documentation had no bearing on matters.

They wanted the Adjudicator to have regard for the fact that the complainant did not challenge the “gross misconduct of the case “at the hearing. I accept that this occurred, however, there was a robust challenge to the proportionality of the decision where the complainant’s case was anchored on seeking a lesser sanction than dismissal.

Issues for Decision:

The issue for decision in this case is whether the dismissal is considered fair or unfair under the Unfair Dismissals Acts.

Legislation involved and requirements of legislation:

The Legislation is the Unfair Dismissals Acts 1977-

In particular Section 6(1) where a dismissal “shall be deemed to be an unfair dismissal, unless having regard for all the circumstances, there were substantial grounds justifying the dismissal “

The onus of proof rests on the respondent.

Section 6(4) of the Act provides an exclusionary rule to Section 6(1), in the event that a dismissal flows “wholly or mainly “from one or more “of

(a)   Capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.

(b)   Conduct

(c)    Redundancy

………..

Section 7 allows the Adjudicator to have regard for the reasonableness of the conduct of the employer in addition to checking compliance with Act in relation to codes of practice.

Section 8 allows for redress in the event that the complaint is well founded and reasons to be given for the awarding of that redress.

Findings and Conclusions of the Adjudication Officer:

I have considered all evidence and submissions made in this case. I was conscious that the complainant did not have a professional representative with him at the hearing and had not submitted a written submission, outside his complaint form on March 29^th 2016. Because of this, I allowed him an extended period during the hearing to advance his case orally and to take the time to test the evidence from the respondent, as well as an opportunity to submit supplementary information after the hearing.

However, the complainant’s Advocate expressed his disappointment on a number of occasions. Firstly on the enormity of the respondent’s documents submitted in the case and secondly on the translation gaps that existed at intervals throughout the hearing. I am satisfied that the complainant had an extremely good command of the English language. I also understood that there were times during the hearing where he felt under pressure and the need for Interpreter support intensified during those periods. I am grateful for the support of Mr H, the WRC translator in this case. I explained to the complainant that I would issue my decision as Adjudicator of this case and it would be open to him to lodge an appeal, if he wished.

At first, I was struck by the 14 year unblemished record on behalf of the complainant. The respondent qualified this by stating that their recording procedures were only formalised four years ago and while there had been informal issues with the complainant before 2015, they did not have a disciplinary record on file.

The complainant’s main challenge to the dismissal was on the grounds of proportionality of the sanction. They sought a revision of the sanction to that of a Final Written Warning. In exploring this contention, I took account of:

“The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question, the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal , if the sanction is disproportionate , the dismissal will be rendered unfair “

In my inquiry into the facts of the case, I found a number of inconsistencies from both parties. On the complainant’s side, he gave a number of inconsistencies in his description of events

1 He spoke about his 5 week holiday as necessary to go to Egypt, he confirmed on a number of occasions that these holidays were threatened by the respondent. The fact is that he availed of the 5 week leave period which seems to have been seldom allocated at the company, a fact remarked on by Mr SM at the disciplinary hearing.

2 He spoke about his certainty of placing the respondent on notice of his medical conditions of anxiety and psychological trauma resulting from bullying and harassment during the course of 2015, I could only illicit three medical certificates, two of which referred to anxiety dated 28^th August, the day after the alleged incident and 10 September. The other referred to a flu and cough conditions dated 17 September, consistent with the period of suspension. I note there was a mention of an underlying condition at the end of the disciplinary hearing but I have not adduced any evidence from either party on this.

I note in particular that the “ pause “ permitted during the appeal hearing was to allow the complainant to submit details of having raised his complaints of bullying , harassment and discrimination ,his response to this was most unusual , “ For further information , ask ML, she has everything “ I am struck by the missed opportunity to expand on what were cited as key impediments for the complainant throughout the case . ML attended the hearing as a HR/Salaries Officer not as an advocate for the complainant.

3 I was also struck by the repeated references by the complainant to apportion blame to many of the employees of the respondent company for his present situation of being dismissed. On probing these assertions, I found that the complainant was adept at diversionary techniques which seemed to me were designed to cast my attention towards the shortcomings of other employees without eliciting a response to my questions of the complainant. I was uneasy at these responses.

On closer examination of the respondents written and oral submissions, I noted that this pattern appeared to emerge on a high number of occasions in relation to incidents at work, the key event being that an exploration of the events of August 27^th on the shortfall in the weight of the products prompted a concurrent request for an ambulance by the complainant. I found that the complainant did not have a live understanding of the challenges faced by the respondent to maintain their commercial reputation nor did he appear to truly take ownership of the issues that caused him dissatisfaction.

On the respondents side,

1. I found inconsistencies in the initial tolerance of the complainant’s behaviour at work. The respondent seemed to initially follow the path of least resistance and moved the complainant around the areas of production without formally addressing the root of the problem. I was struck by the sincerity of Ms ML and Mr BC as Hr and Production Managers to seek to focus the mind of the complainant on his need to improve his performance on August 21^st. It was clear that they were prepared to park the event of the “ walk off “ from July 31^st in favour of an improvement plan , which the complainant “ shook on “. It is clear to me that this was superimposed on a stated growing concern for the Meat Production Team as the respondent was beginning to have reservations about the role of the complainant in the company, going forward.
2. I note that the complainant submitted a medical certificate dated 28 August which the respondent stated prompted an internal fact finding exercise into the interface between the complainant and the other members of staff. These interviews were conducted over a two day spread commencing on 28^th August and finalised on September 1. I find the time frame extremely narrow in this regard. Nonetheless, I can accept that the narratives which emerged from some of these interviews were sufficient for the company to prompt a full investigation. I would have liked to hear directly from Mr AB, but he was not available to the hearing.
3. I found an inconsistency in the management of the reference to a threat of violence towards the complainant on August 12^th 2015. Mr SM stated that he would look into it with a view to closing off the circle. There was no further reference to it during this process. It was referenced in the appeal but was netted down to the complainant holding a level of dissatisfaction that he was sent home on the day in question rather than the alleged perpetrator. I find that the respondent did not have a formal complaint from the complainant on this issue and the matter was reduced to wages that were lost and repaid and a follow on change of work location.
4. Neither the completed report of the Investigation that led to the Disciplinary Hearing nor the Report of the Disciplinary Hearing itself was submitted by the parties. The complainant had received documents but did not make any submission on them, therefore the issue is moot.

Conclusions:

I find that the complainant presented as a significant management challenge at the respondent company. The complainant had a clear view of where he wanted to work, what work pattern he wished to work and with whom he wished to work. At particular times in a working life, it is commendable to see assertiveness and self determination if there is a mutual gain for the company and the employee; this was not such an occasion.

I am surprised that in a company of 600 workers, that this pattern ran for as long as it did without the intervention which eventually followed in “Rubicon fashion” on August 21^st by the joint sign up to the covenant of improvement.

I find that the company demonstrated a reasonable approach in “parking the issue of the walk off “pending the covenant of improvement. I find that the company lost patience following the incident of the incomplete validation process of August 27^th, coming so soon in the wake of the covenant of improvement. I accept that the respondent was deeply shocked by this occurrence and concerned for the viability of their brand for customers. This led to an “all bets are off “scenario.

I find that the suspension was affected concurrent with the complainant’s period of sick leave in August /September; the letter dated 7^th October set out the grounds for the suspension and enumerated the allegations. This seemed to overlap with an earlier letter referring to September 7^th. However, I accept that the suspension was affected to facilitate the proper conduct of the investigation. In Reilly V Bank Of Ireland [2015] IEHC 241. Noonan J commented on the appropriateness of suspension:

“ …. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of interference with evidence or perhaps to protect persons at risk of such conduct. It may perhaps be necessary to protect the employers own business and reputation where the conduct is known by those doing business with the employer “

I accept that the respondent managers were duly concerned in this regard.

I find the complainant did not help himself throughout the investigation or disciplinary process by answering on the face of it , reasonable questions, by stating “prove it “or “how can you prove it? “ I conclude that the inclusion of an advocate at these early stages of the process would have gone a long way in guiding a strategic and respectful response to reasonable questions. In this, I am mindful of the complainant’s response in preparation for the disciplinary meeting, where he requested and received a postponement.

“ I need time to consider detailed allegations and prepare my answers, as there is a suggestion that I could be dismissed “

This points to a focused and informed mind.

During the appeal process, the complainant was asked, “Do you feel some form of disciplinary action is just? “ He appears to have given an evasive response, which did not place him in the best possible place in the eyes of the final decision maker.

I find that the complainant took an early refuge in apportioning blame on other agents of the company and I found that while the company adopted a reasonable approach in investigating these assertions, invariably they were” dead ends” as the complainant, for whatever reason, had not actioned any of the company’s formal procedures of complaint, grievance, bullying policy or statement of concern. There were occasions also, where the complainant was referring to events of a number of years past rather than the present tense.

I find that the complainant was given a reasonable time to effect improvements in his performance and a reasonable work situation to concentrate on such defects. In Richardson v H Williams and Co Ltd UD 17/1979, The EAT set down these rules to be considered in the event of a justified warning that unless work improved in a specific area, a job would be in jeopardy. It was qualified by stating that an improvement should nullify the warning.

In the instant case , the improvement did not follow as hoped for by the respondent and the earlier concerns on performance were added to by the events of August 27^th , compounded by the negative feedback in some of the co worker narratives of 28^th August and September1 and solidified via the investigation that followed . When I asked the dismissal decision maker, Mr SM, had he considered a decision short of dismissal? , I was struck by his balanced reasoning on proportionality of the sanction . I am satisfied that he took his responsibility in this regard very seriously and did so with a heavy heart. This was followed by the very measured approach taken by the Appeals Manager. I find that the company complied with the code of practice on Disciplinary Procedures S.I 146/2000.

I note that the complainant was aware that the respondent had difficulties with his performance at work. I do not accept that the complainants’ rejected the binding nature of the covenant of improvement “shaken” on August 21^st and rather reduced it to a description of “bait “against him. This confirmed to me that the complainant knew that that he was under the “spotlight” by the respondent. The complainant had an important job at the respondent company; he was a key member of the production team.

I think it is regrettable that the complainant did not input sufficiently into a veritable recovery plan via the disciplinary process to afford him the second chance sought by him in real time rather than his retrospective approach post dismissal .He was faced with a number of allegations which he disputed throughout the process by stating that he was under pressure, yet no evidence was adduced on the extent of this pressure outside a systematic criticism of fellow workers and supervisors. Of course, I took the issue of being threatened at work with a knife seriously and I accept the confirmation that the perpetrator was disciplined. It was open to the complainant to action a complaint externally to the Gardaí if he was dissatisfied at the internal handling of the matter.

In Pacelli v Irish Distillers, [2004]15 ELR 25, an EAT case cited by the respondent, pointed to the parameters associated with misconduct in the serious domain and remarked that “It is the nature and quality of the conduct and not its consequences which renders the conduct either serious or trifling”

According to Kenny J in Glover v BLN Ltd. [1971] IR 388 at 405:

“It is impossible to define the misconduct which justifies immediate dismissal … There is no fixed rule of law defining the degree of misconduct which justify dismissal … What is or is not misconduct must be decided in each case without the assistance of a definition or a general rule. Similarly all that one can say about serious misconduct is that it is misconduct which the court regards as being grave and deliberate. And the standards to be applied in deciding the matter are those of men and not of angels.”

The respondent had a descriptive passage of Gross Misconduct on page 14 of their handbook.

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.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim.

In Bigaignon, the EAT referred to the precise terms of the test to be applied as to whether a sanction of dismissal was reasonable in Noritake ltd V Kenna EAT UD88/1983?

1 Did the company believe the employee mis-conducted 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?

I have applied this test to the instant case; I find that I must conclude that all three questions must , on balance be answered by a “yes” . Having taken an in-depth consideration of the evidence adduced by both parties, I find that the respondent has discharged the onus of establishing that there were substantial grounds justifying the dismissal on grounds of conduct in this case and I must find for the respondent in that regard . The claim for Unfair Dismissal cannot succeed.

Dated:   29^th August 2016