ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000418
Complaint(s)/Dispute(s) 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-00000612-001 | 03/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00000612-002 | 03/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00000612-003 | 03/11/2015 |
Date of Adjudication Hearing: 15/03/2016
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 8(1B) of the Unfair Dismissals Act, 1977 and Section 79 of the Employment Equality Act, 1998 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:
I was dismissed on the spot, on the 08th July 2015 without any notice, warning, disciplinary process, investigation or right of appeal. I was not told of the reason for my dismissal or given a right of reply but I believe, that my dismissal was because there was a wooden penis on a shelf over my workstation with the words, in polish "Worlds Greatest Dick, Jim" written upon it. One of the owners of the Respondent was walking past the welding area on his way to the canteen when he spotted the wooden penis above my booth and beckoned me over with his index finger. He said take that (the penis) and come with me. He was in an extremely bad humour on the morning in question as I believe he had just been made aware of an official complaint which had been made against him by a colleague of mine. I advised the owner that the wooden penis was not mine and that it had nothing to do with me but he just started shouting at me saying take it, take it and come with me. He just kept shouting this at me repeatedly. I took down the penis and followed him to the conference room. He closed the door behind him and said "you have destroyed my company, get out of my factory". I replied saying it was not mine, it had nothing to do with me. He was not listening to me and said "you cannot write this about [name], he is a Director of the company”. I said the penis is not mine, I did not do this, somebody else made it and left it there, why are you saying this to me? He then said "get out and go home". It was a brief encounter of less than two minutes at the end of which he opened the door of the conference room for me and then walked me to the exit door which is right beside the conference room and opened that for me too also. I agreed to leave but said that I needed to get my bag in my locker at the welding station before doing so. The owner walked in front of me over to my station and while walking over I asked why this was happening but he ignored me. He watched me gather my things at my locker and then walked me to the front door which he also opened for me to leave. I enquired about my P45 before I left and he said I will give it to you. Everyone on the floor was watching at this point as the owner was speaking very loudly. I then went home. I subsequently received my P45 which states my date of cessation as the 08th July 2015 and I also received my holiday pay. My solicitor wrote to the Respondent on the 23rd September 2015 but we have received no reply. |
I did not receive any notice or pay in lieu thereof. |
As I am polish and the wooden penis contained writing in polish, it was assumed that I had made/written the words on it. |
In relation to the facts of the case, the Complainant stated that he did not make the offending item nor was he responsible for the writing thereon. He further informed the Hearing that he had not placed the item in his workstation at the time in question.
The Complainant stated that the item in question had been on the factory floor for a significant period of time before it was placed at his work station. He also contended that the Respondent's Managing Director would usually walk the factory floor once or twice a week.
The Complainant contends that the offending item would have been on display around the floor during many of these walkabouts. However, the first time any action was taken was when it appeared at the Complainant's workstation.
In summing up on behalf of the Complainant, his legal representative made the following points:
The offending item, which led to his dismissal, had not been made by the Complainant nor had it been placed by him at his workstation.
The item in question had been in circulation for approximately 3-4 months prior to the incident involving the Complainant.
The Respondent does not have any policy in relation to the display of inappropriate material in the workplace. Employees had never been made aware of the Respondents attitude or approach to such material. In fact, it was suggested that a general tolerance of inappropriate material existed in this organisation.
The Respondent displayed a complete lack of all the procedures one might expect to find in relation to disciplinary matters of this nature, including: investigation, stage process and a system of warnings.
The sanction of dismissal, which was imposed by the Respondent in this case, was both disproportionate and unwarranted.
The Complainant was given no opportunity to defend himself or make his case.
The background to this case, where the Complainant's overtime had been cut, needed to be taken into consideration.
Respondent’s Submission and Presentation:
There was no representation from the Respondent at the Hearing.
A request for postponement had been received at 3.45 pm on the afternoon before the Hearing (14 March 2016) but this request was declined.
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:
The issue for decision was whether the Complainant’s dismissal from his employment was unfair as alleged.
Legislation involved and requirements of legislation:
At the commencement of the proceedings, the legal representative for the Complainant informed the hearing that the Complainant was not proceeding with his claim of discriminatory dismissal under equality legislation but instead elected to proceed by way of unfair dismissal. Consequently, the legislation applying in that case was the Unfair Dismissals Act 1977.
Decision:
Having carefully considered all of the evidence presented in this case, which was uncontested, I am satisfied that the Complainant was dismissed from his employment without any proper or appropriate process being applied in the situation by the Respondent. In fact, the manner of his dismissal, as detailed by the Complainant, suggests a complete absence of process or indeed any attempt on behalf of the Respondent to apply fair procedure order to comply with natural justice.
I am also of the view that the sanction of dismissal was disproportionate and could not be considered as falling within a range of reasonable responses in the circumstances
Consequently, I find that the Complainant was unfairly dismissed from his employment and I award him the sum of €9.500.00 (including notice) in compensation.
Dated: 12/05/2016