ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000173

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

Date of Adjudication Hearing: 22/01/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

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(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 commenced working for the Respondent in May 2001. He worked in several different roles over the duration of his employment primarily as a lorry driver and a machine driver.

He had no issues with the Respondent until 2011. In 2011, the Complainant had a health and safety complaint with the Respondent regarding the provision of protective clothing and footwear. He was absent from the workplace for some time on stress leave. At that time, the Complainant wrote to the Respondent setting out the grounds for his grievance and stress leave.

The Complainant gave evidence that between 2011 and his dismissal on the 30^th of September 2015 there was tension between him and the Respondent Company “all of the time”.   He felt there was a “change in attitude” in the company towards him. He felt his work was being undermined.

The Complainant gave evidence that he believed that the main machine he was working on which was a Chieftain Powerscreen three way split machine to sort gravel into four products, was not safe to use. He felt that work was needed to be done on the machine to make it “safe”. He gave evidence that there was no emergency stop on the machine and certain guards required to stop him and other staff falling into the machine was missing from the machine.

The Complainant claimed that he raised these issues with the Respondent and in particular in July 2015. At the time he was told by the Respondent that the machine was “fine for use”. He claimed that he verbally informed the Respondent of his issues with the machine on three to four different occasions. The Complainant gave evidence that on each occasion he was told the machine was fine and that he should continue to use the machine.

The Complainant decided to refuse to work on the machine. Following same, “things came to a head” and there was a verbal altercation between him and management of the Respondent.

On the 10^th of July 2015 the Complainant was approached by one of the directors of the Respondent in the car park of the Respondents office. The Complainant was going on annual leave that evening for the following 10 days. This was not a scheduled meeting. The Complainant gave evidence that had no knowledge of the meeting and it came as a surprise to him. Evidence was given that the Complainant was told that he was being given a verbal warning and that the Respondent was “not happy with his work”. He was handed the sealed envelope and told to read the letter. No further discussions took place. Evidence was given during the hearing that the sealed envelope contained only a copy of the grievance procedure of the Respondent.

Following his annual leave, the Complainant returned to work and continued in his duties as he had done prior to the 10^th of July 2015. As before, he continued not to use the screener, a position he had adopted and believed the Respondent had accepted.

On the 20^th of August 2015 there was a further verbal altercation between the parties. The Complainant gave evidence that it was in connection with the screener machine and his failure to use the machine.

On the 30^th of September 2015, one of the Respondent directors called him into the Respondents office from the car park. Again this was not a scheduled meeting. The Complainant attended the meeting alone. In the office were two directors of the Respondent Company. The Complainant gave evidence that they asked him “what was wrong” and “why was he not using the machine”.

The Complainant explained his reasoning behind his failure to use the screener machine was for safety reasons. The meeting was reasonably cordial and there was an apology for the verbal altercation the month earlier. However the meeting concluded with one of the director stating that if the Complainant was not going to use the machine, “I have no job for you”.

On hearing this, the Complainant requested “Is that the case that there is no job for me here tomorrow?” He understood that his employment was being terminated there and then. In response, the Complainant requested his P45. He was told that it would have to be provided by the Respondent’s secretary.

The meeting ended and the complainant picked up his P45 on the 12^th of October 2015.

Respondent’s Submission and Presentation:

The Respondent gave evidence that they had no issue with the Complainant for the previous fourteen years of employment with them. In 2011 there was a request for safety protective gear and this was provided by the company. The company employs twelve employees over three different sites. The Complainant worked primarily in one site. His job was always to screen sand. The director for the Respondent gave evidence that the complainant had used the same machine once he was assigned to it namely a Chieftain Power screen three way split machine. The machine is a twenty year old machine and was purchased in Northern Ireland. It has been repaired and upgraded over the years by their “in house” mechanic and fitter. However there is no record of this.

The director gave evidence that there were safety guards on the machine and there was an emergency stop.

The director gave evidence that the Respondent Company was aware that the Complainant had refused to work on a particular machine. When the queried the Complainant why he refused to work on the screener machine, the answer they were given was that “he just didn’t want to”. They were told “No, I just don’t want to do it anymore” and they were directed to assign another member of staff for that work.

The director gave evidence that a verbal warning was given to the Complainant on the 10^th of July 2015. There was no notification in writing of the meeting and the verbal warning wasn’t confirmed in writing. Evidence was given that the Respondent had contacted their solicitor who had provided them with written procedures to use. The director gave evidence that none of the other members of staff were given these written procedures. The director gave evidence that he inadvertently only gave the grievance procedure to the Complainant. He had also been provided with a disciplinary procedure, however due to an oversight this was not provided to the Complainant. The director believed that the Respondent had commenced a disciplinary process with the Complainant. He believed that he had given the Complainant a three week period to make up his mind as to whether he would use this machine or not. However there was no documentary evidence produced at the hearing to confirm this belief.

The director gave evidence that on the 21^st of August 2015 the Complainant was requested to screen sand using the screener machine and he refused. Following same there was a verbal altercation between the parties.

The director gave evidence that on the 30^th of September 2015 he invited the Complainant to come into the Respondents office for “a small chat”. There was another director of the company in the office at that time. He opened the meeting by stating that they wished to resolve the problem and he asked the Complainant why he was refusing to screen sand. The director gave evidence that the Complainant directly refused to screen sand and suggested that other employees would be requested to take over this role. The director replied that they had their own jobs to do and couldn’t.

The director’s evidence was that he said to the Complainant that he was leaving him with no alternative or choice but to get somebody else to do his work. His evidence was that Complainant said in response “do that so and give me my P45”. While saying this, the Complainant had his hand out as in looking for a document.

The Director gave evidence that the Complainant didn’t appear for work the following morning and two weeks later was provided with his P45. The Complainant wasn’t asked to put his request for his P45 in writing.   One week later the Respondent hired somebody to replace the Complainant.

The director gave evidence that he could not recall any conversation with the Complainant in respect of machinery or the safety of machinery. He confirmed that there were ongoing conversations with the Complainant, but not about the health and safety issues.

His position was that he did not terminate the Complainants employment. His evidence was that he had no choice with the Complainant refusing to do the job he was hired to do. He had no alternative but to find somebody else to do the job.

The director gave evidence that the Complainant was welcome to come back to work.

The director felt that he Complainant had been losing interest in the job and at one stage had made the threat to him “you will lose, if I go further”. The director took this as meaning the Complainant would bring a claim against the Respondent.

The director gave evidence that the Health and Safety Authority had carried out a number of unscheduled on-site inspections and that there was no issue with the Power screen machine on these inspections.

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:

-          Unfair dismissal

-          No contract of employment

-          Notice

Decision:

The Respondent did attempt to put in place a grievance and disciplinary process, however due to an oversight only advised the Complainant of the grievance procedure.

The Respondent itself admitted that it had not given the disciplinary procedure to the Complainant.

I have to accept that the Complainant did not comply with the grievance procedure that was provided to him on the 10^th of July 2015. The Complainant admitted that he did have an earlier grievance with the Respondent in 2011. At that time he did put his grievances in writing to the Respondent. The Complainant was aware of procedures that had to be followed irrespective of receipt of the grievance procedure of not.

The failure of the Complainant to put his grievances in writing may have led to the confusion as to the reasons he was refusing to carry out instructions and use the screen machine that he was assigned.

There was a total conflict of evidence as to what took place on the meeting of the 30^th of September 2015. The Complainant gave evidence that he was told his job was gone. The Respondent gave evidence that the employee refused to carry out his instructions and resigned.

The fact that there were no minutes of the meeting (or earlier meetings) and no witnesses as to what was said or took place at the meeting is not of assistance. As the Respondent was in control of the meeting and how and when it was called, this failure must be construed against the Respondent.

The Respondent considered the meeting of the 30^th of September 2015 to be a disciplinary meeting. However it had not set this out in writing to the Complainant in advance of the meeting. The Respondent did not give an opportunity to the Complainant to prepare for the meeting. This is contrary to procedural fairness and good practice. The Respondent did not comply with the requirements of S.I. No. 146 of 2000 which is the Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000. The Complainant was not advised that the meeting was part of the disciplinary process. In addition the potential outcome of the meeting was also not set out in writing to the Claimant, or the Claimant’s right of appeal. The failure of the Respondent in this regard rendered the dismissal procedurally unfair.

Having considered the evidence of both sides, I accept that the Respondent dismissed the Complainant. I do not accept that the Complainant would have voluntarily resigned in the manner alleged. However I find that the Complainant contributed towards his own dismissal by not setting out in writing his grievances and the reasons why he was refusing to carry out the Respondents instructions.

The Complainant gave evidence of his loss and attempts to mitigate his loss.

The Complainant obtained seven weeks employment during the remainder of 2015 at the same rate of pay as he was earning with the Respondent. Therefore his loss to the date of the hearing is nine weeks.

Redress for unfair dismissal is governed by Section 7 of the Unfair Dismissals Act 1977 (as amended).

Section 7 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

Accordingly I find that the Complainant was unfairly dismissed and award the Complainant compensation in the amount of €4,000.00.

As regards a complaint under the Terms of Employment (Information) Act, 1994, the Respondent gave evidence that the Complainant was provided with a copy of a contract of employment in October 2008. The Complainant commenced work with the Respondent in March 2001. The Complainant gave evidence that he never received a copy of the sample written statement of terms of employment produced at the hearing. The Respondent was not in a position a copy of the actual document that was provided in 2008 and there is no documentary proof that the Complainant received it. Therefore on the evidence I find that the terms of the Act were breached and award the Complainant €1,000.00.

As regards the Minimum Notice & Terms of Employment Act, 1973, arising from the above decision, I award the Complainant the sum of €3,463.44 in lieu of six weeks minimum notice under the Minimum Notice and Terms of Employment Act 1973 – 2005.

Marguerite Buckley

Dated: 11th March 2016