ADJUDICATION OFFICER DECISION
A Worker v Meat Company
Adjudication Decision Reference: ADJ-00000564
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00000831-001 | 13/11/2015 |
Date of Adjudication Hearing: 26/02/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
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 Complainant was dismissed by the Respondent for gross misconduct and breach of trust between employer and employee. He was employed for 6 and a half years, was promoted through the ranks and had no issue in his employment until July 2015. He was disciplined for a miscalculation of mortalities in a fattening plant and was demoted. In September 2015 he was told he had to attend a meeting and was not given the reason. At the meeting the following day, he was asked if he had been clocked in by another employee on some occasions. He was honest and admitted it happened on a couple of occasions when he was in a rush. He felt he had not defrauded the company as he had on occasions come back in the evening to ensure things were ok in the plant, outside working hours. The total number of occasions of clocking were 5 and only one was more than an hour. The issue of the previous warning in September 2015 was held against him and the Complainant was dismissed on 23rd September 2015. He appealed the decision but the decision to dismiss was upheld. It is submitted that the Respondent acted in an unreasonable manner in the first disciplinary situation and in breach of all fair procedures and natural justice by not informing the Complainant that the meeting was disciplinary, by not giving him written invitation to attend and informing him that he was entitled to representation and by not informing him he had the right to appeal. On the second occasion, there was even more disregard for procedures when he was invited to a disciplinary meeting over the phone, he was not informed that it was disciplinary and the manager refused to discuss what the meeting was about. It is submitted that if there was an investigation into the matter of the clocking then it was carried out without the knowledge of the complainant and this can be concluded as a process of entrapment. Employment Appeals case law was submitted in support of the Complainant’s argument that the employer acted unreasonably in dismissing the Complainant. |
Respondent’s Submission and Presentation:
The Complainant was employed as a Unit Trainee Manager in 2009 and was effectively managing the fattening unit since then reporting to the General Manager of the Farms. He had one employee reporting to him. In February 2015 an updated Time Management System was introduced across the Group at all sites including farms. A communication had also been sent to all farm employees in November 2014 explaining the reasons for the change and emphasising the importance of compliance in full with the clocking in/out protocol from a Health and Safety and Working Time aspect. A further communication was circulated to all farm employees in February 2015 advising them of the go-live date and the instruction that all employees were to check out when leaving the farm. In September 2015, irregularities in the complainant’s clocking were noted and it was noted that he was clocked in when he was not physically on the site. On verification with the CCTV system it was discovered that there were five occasions in August and September 2015 when he was clocked in but not present at the site. An investigatory meeting was held on 22nd September 2015 with the complainant, the farm manager and the group HR manager. The complainant was advised that this was an investigative meeting and not a disciplinary meeting but that if he wanted representation at the meeting he could. The complainant declined. When questioned about the clockings, the complainant initially said he was on site, and then admitted that he had left the site early on occasions. He admitted he knew it was wrong and said he would stop it immediately. It transpired that on the request of the complainant, the other employee clocked him in. The complainant confirmed that he was aware of the company policy on the proper usage of the time management system and of the seriousness of breach of the rules. After further discussion the complainant was told he was suspended on full pay and that he would be contacted by the company in relation to a disciplinary meeting to be held at a later stage. Following a review of the notes, management decided that no purpose would be served in delaying the disciplinary hearing as there was no ambiguity and the irregularities had been admitted and explained in full. Therefore a disciplinary hearing was convened later that afternoon on 22nd September and the Claimant was accompanied by a representative. At that hearing the complainant confirmed he was clocked in for additional hours for which he was paid in full and did not bring to anyone’s attention at the time as being incorrect. It should be noted that the complainant was suspended without pay and issued with a final written warning on 13th July 2015 in relation to him knowingly recording misinformation of the number of mortalities in the farm unit. The final written warning was communicated to him by letter and operational changes and a new reporting structure and record keeping protocol. The final written warning was to remain on his file for a twelve month period. It is submitted that the complainant knowingly claimed hours worked which he did not work, instructed a junior employee reporting to him to clock him in, and did this in the full knowledge that he was on a final written warning. He has shown a breach of trust in what was required of him as a manager and he was rightly issued with a letter of dismissal on 23rd September 2015.
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 consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Having considered the evidence and submissions, I find that the complainant clearly acted in breach of the company rules and as a manager and employee who was on a final written warning, took unacceptable actions which ultimately cost him his job. I note the circumstances in which he had a prior incident of discipline. There were some flaws in how the respondent handled the disciplinary situation in both instances involving the complainant, particularly not advising the complainant in writing of the specific allegations against him prior to meeting him. There was an undue haste in the latter meetings, where the investigation meeting was followed the same day by the disciplinary meeting. For that reason only, I find that the respondent acted somewhat unreasonably and I find the complainant’s dismissal was unfair.
In considering redress, I find that there has been a breach of trust and that re-instatement or re-engagement are not appropriate. I further find that the complainant contributed 90% to the situation in which he found himself, and I find that compensation in the sum of €2,000 is fair and reasonable in the circumstances of this case.
Dated: 30/3/2016