ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002661

Complaint/Dispute for Resolution:

Date of Adjudication Hearing: 29/09/2016

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, and Section 11 of the Minimum Notice & Terms of Employment Act 1973, following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute. The dispute reference CA-00003700-001 under the Industrial Relations Act 1969 was withdrawn by the complainant at the hearing.

Attendance at Hearing:

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The complainant was requested by the Commercial Supervisor to work on a specific line for the duration of his shift in January 2016. The complainant refused to move line, despite the direct instruction. The company has the right to regularly move employees across lines to meet business requirements, and the company / union agreement commits to flexibility in roles.    Following his failure to follow the instructions, the complainant and his SIPTU rep met with the Operations Manager and HR Manager with a translator present. The complainant referenced an incident which occurred in February 2013. This incident in fact, was resolved to the satisfaction of the complainant and the other employee ceased employment with the respondent in March 2013.  

The complainant was suspended with pay pending the outcome of the investigation.   He attended an investigation meeting on 22 January 2016 and a disciplinary meeting on 25 January 2016. At these meetings the complainant confirmed that he refused to go to the requested line despite numerous requests and was afforded the opportunity to reconsider on several occasions, including following advice from his union representative.   He was reminded and confirmed he understood his obligations as an employee to follow a reasonable instruction – Section 9.2 (1) company/union agreement. He accepted that he had worked on the line on a number of occasions, including since the employee concerned had left the employment 3 years previously.

Having considered the above, the complainant was dismissed by reason of gross misconduct and given a right to appeal. He appealed the decision but was unsuccessful in his appeal.

It is argued that the respondent has been fair and reasonable with the complainant during the disciplinary process. Following a detailed, fair, transparent and thorough process with the complainant and his representative, in which the facts of the case were not disputed, the complainant was adjudged to have wilfully and deliberately refused to obey a legitimate, lawful and reasonable work instruction, which falls under the summary dismissal category of the company disciplinary procedure at section 9.2.1. It is the company’s position that it acted reasonably and that the gravity of the offence and the implications for the contractual relationship was taken into account in the decision to dismiss the complainant.

Decision:

CA-00003700-01

The respondent was quite within its rights to request the complainant to move to another line due to business needs. The complainant ought to have followed instruction ‘under protest’ and lodge his grievance which would then have allowed the parties to try and resolve the matter in a less confrontational manner.   I note the mitigating circumstances cited by the complainant at the hearing regarding his father’s serious illness and I find that this factor, along with the complainant’s reasonably long service was not taken sufficiently into account. At least there was some conflict of evidence surrounding the time and context of his raising the illness of his father in the situation.

I note the minutes of the 22 January 2016 meeting which reflect the complainant’s apology and his willingness to work on the requested line.

I have examined whether the respondent has acted reasonably in dismissing the complainant and I find that in light of the circumstances it did not.

I uphold his complaint of unfair dismissal. In relation to redress, I note the complainant’s position at the end of the hearing that he has an ‘on line business’ since June 2015. I further note no attempt to mitigate loss and I set the award at zero.

CA-00003700-003

As found above, as I consider the complainant to have been unfairly dismissed from his employment, he is entitled to the statutory 4 weeks pay in lieu of notice. I uphold his claim, and require the respondent to pay to the complainant the sum of €1,600.

Dated: 25^th November 2016