ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001512

Complaint for Resolution:

Venue: Ardboyne Hotel, Navan, Co. Meath.

Date of Adjudication Hearing: 28/06/2016

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Section 8 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.

Background

The Complainant was employed as a driver with the Respondent from the 10^th of May 2007 to the 23^rd of December 2015. He was paid at the rate of €500 for working 40 hours per week. He alleges that he made repeated complaints and representations to the Respondent in relation to breaches of health and safety at work. He was dismissed from his employment for leaving the work place early and for failing to complete his duties. He alleges that the real reason for his dismissal was because he had made complaints regarding health and safety at work. He was dismissed without due process or fair procedures. He filed a complaint with the Workplace Relations Commission on the 21^st of January 2016, alleging that he was unfairly dismissed contrary to the terms of the Unfair Dismissals Act, 1977.

Respondent’s Submission:

The following is a summary of the Respondent’s submission;

The Complainant commenced employment with the company as a general operative on the 10^th of May, 2007. In April 2013 following a consultation period, the company set out that the hours of work for its drivers. It would either be an AM shift, commencing at 4am or a PM shift that would commence from 12pm onwards. In a further letter from the company on the 11^th December 2014, the complainant was informed that he would be required to work AM and PM shifts on alternate weeks commencing on the 19^th of January 2015. The company set out the PM shift would commence from 12pm onwards.

BACKGROUND TO THE ISSUE:

On the 4^th of September 2015, following an investigation meeting, the Complainant was invited to attend a disciplinary hearing in relation to finishing early on two dates, 18^th and 19^th of August 2015, without completing the route and without communicating a reason for not completing his duties as required.

The company decided to recommence the investigation into these incidents and an investigation meeting took place on the 20^th November 2015.

An investigation report was issued on the 1^st of December 2015. A disciplinary hearing was rearranged with Mr. C.G. on the 3^rd of December 2015. The Complainant was issued with a written warning on the 7^th of December, 2015. On the 8^th of December 2015, two company personnel met with the Complainant to reiterate the working procedure and practises for AM and PM routes. It was set out clearly at this meeting that flexibility would be required when working the PM routes as the route could start from 12pm onwards and that the start time could vary. The content of this meeting was documented and signed by the complainant. A follow up letter was given to him on the 10^th of December 2015. This letter sets out that;

‘Failure to comply with this procedure and working practise and leaving the shift without completing the assigned tasks without good reason will be regarded as gross misconduct and could result in disciplinary action being taken against you up to and including dismissal.’

On the 10^th of December 2015, there was a further incident when the complainant left his job before the route was completed. He was suspended with pay pending investigation on the 11th of December 2015. It was alleged that he left the company workplace and/or company vehicle before the end of his shift without the permission of the supervisor or line manager. This was regarded as gross misconduct.

An investigation meeting took place on the 15^th December 2015, conducted by Mr. PN. At this investigation hearing the Complainant confirmed that he was aware that he was instructed to start at 1pm but decided to start at 12pm. Minutes and report of this investigation were recorded and sent to the Complainant on the 17^th of December 2015.

A disciplinary hearing was held on the 22^nd of December 2015, conducted by MR. C.G. The issue of concern at this meeting was the allegation that the Complainant left the company workplace or the company vehicle before the end of the shift without permission from the supervisor or line manager. The date in question was the 10^th of December 2015. In the course of this hearing, the Complainant confirmed that he had left his shift early between five and ten times. He accepted that by not collecting all the bins on the route he was putting his job at risk. Taking all of the above factors into consideration, the company dismissed the Complainant fairly for repeated negligence in the performance of duties and persistent non-cooperation with staff members or management amounting to gross misconduct in line with the disciplinary procedures.

COMPANY ARGUMENTS:

The Complainant had received a final written warning as a result of a prior disciplinary matter in a letter dated the 7^th of December 2015. The Complainant had neglected to appeal this sanction. In that outcome letter it was set out;

‘Your actions had a direct negative impact on the level of service by the company to the customer on those dates i.e. customers did not receive their waste related service as contractually agreed with the company. It is your responsibility to complete your route and duties as required of you. It is not an option not to complete your route. ’

Furthermore, in the meeting on the 8^th of December and letter of the 10^th of December 2015, it was pointed out that leaving the shift without completing the assigned tasks, would be regarded as gross misconduct.

The Complainant contends that he was dismissed for reasons of reporting health and safety concerns. This is simply not the case. The company did not wish to end the Complainant’s employment. The meeting on the 8^th of December 2015 was an effort to ensure that the company’s expectations of the Complainant were communicated to him, in order to give him every opportunity to remain in employment. The Complainant indicated at his disciplinary meeting on the 22^nd of December 2015, that he had been looking for redundancy. The Complainant was informed that he had the right to appeal the dismissal decision within 5 working days, yet he opted not to appeal the dismissal.

Complainant’s Submission:

The following is a summary of the Complainant’s submission;

The Complainant had previously filed a complaint against the Respondent alleging that he was penalised for highlighting breaches of health and safety. A Rights Commissioner hearing took place in relation to this complaint and the Rights Commissioner issued a determination on the 28^th of September 2015 (Ref. No. r- 151346-hs-14-jw). The Rights Commissioner found that the Complainant was penalised because (a) the Respondent failed to take into account that the Complainant had a doctor’s appointment on the 22^nd September 2014, and (b) the Respondent had failed to process the Complainant’s appeal in relation to the written warning.

The Respondent purported to furnish the Complainant with a final written warning in respect of the Complainant having finished work early on the 18^th and 19^th of August 2015. The Complainant’s representative, by letter dated the 3^rd of November 2015, appealed the said decision on the following basis. That the allegations were all strenuously denied, that the Complainant had not been furnished with a copy of the investigation and disciplinary notes, that no separate and distinct investigation and disciplinary hearing had taken place, that the Complainant was not furnished with the investigation notes prior to the disciplinary hearing and adequate procedures were not followed and the Complainant’s natural justice rights were abridged. By letter dated the 17^th November 2015, the Complainant was invited to a further investigation hearing on the 20^th November 2015 in relation to the same incidents, thought it was not stated to be an appeal. The Complainant was further invited to a disciplinary hearing on the 3^rd of December 2015. By letter dated the 11^th of December 2015, the Respondent purported to suspend the complainant pending the outcome of an investigation into the allegation that he had left work before his shift had ended. This suspension was not necessary for any of the reasons set out by Noonan J, in the governor and company of the Bank of Ireland V Reilly [2015] IEHC 228. It was a punitive measure and not a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process. That letter stated that the only incident being investigated was that of the 10^th of November, 2015, where he left the company workplace which amounted to gross misconduct. There was no mention in that letter of “repeated negligence of persistent non-cooperation”.

A disciplinary meeting was held with the Complainant on the 22^nd of December 2015, the Respondent summarily dismissed the Complainant on the basis of gross misconduct. The allegation made against the Complainant at that disciplinary meeting was that on the 10^th of December 2015, he left the company workplace or company vehicle before the end of the shift without permission. The respondent failed and/or refused to deal with the Complainant’s appeal prior to his issuing a complaint to the Rights Commissioner. The Complainant did not appeal this decision, and instead lodged his complaint with the Workplace Relations Commission. The Respondent sent the following letter to the Complainant;

“The company regards the conduct referred to above as a very serious matter which is viewed by the company as repeated negligence in the performance of duties and persistent non-cooperation of staff members or management amounting to gross misconduct warranting dismissal.”

The first page of the Respondent’s disciplinary procedure, as provided to and signed by the Complainant in 2011, stated, in relation to gross misconduct

“If the incident is sufficiently serious, the person may be summarily dismissed on grounds of gross misconduct and the normal stages of the procedure will not apply in such a situation.” Gross misconduct is defined in the disciplinary procedure of the Respondent in a non-exhaustive list, which states;

“These lists are not exhaustive or exclusive and offences considered to be of a similar nature will be dealt with under this procedure”. The offences listed include inter alia, malicious mischief, resulting in danger to fellow employees or destruction of property, inflicting bodily injury, stealing, bullying, reporting for work under the influence of alcohol or drugs or defrauding the company. No where in that list is there an offence of or remotely similar to “repeated negligence and persistent non-cooperation”. The Respondent’s disciplinary procedure does however; list the following matters as examples of misconduct which could lead to formal disciplinary action.

“Negligence in the performance of duties, being absent without permission or excuse, persistent non cooperation with staff members of management, repeated breach of the organisations policies, repeated ac ts of insubordination, repeated acts of misconduct”. It is clear from the disciplinary policy, that even repeated acts of misconduct are to be dealt with under the Respondent’s Four Stage formal disciplinary procedure, pursuant to which an employee can only be dismissed if further misconduct occurs during the currency of a final written warning.

Appended to the letter of the 29^th of September 2015, informing the Complainant of his final written warning, and after that decision had been made was a copy of the disciplinary procedure which had been amended so that it was very different to that which had originally been provided to the Complainant. The main difference was that the Respondent had added a number of extra matters to the list of examples of gross misconduct, including “leaving the company workplace and/or company vehicle before the end of the shift without permission from the supervisor or line manager”. The Complainant is a stranger to when this change in policy occurred. Further, it is submitted that it is nonsensical that a certain type of incident can be defined as ‘misconduct’ and ‘gross misconduct’ at the same time. Both versions of the Respondent’s disciplinary policy state that persistent non-cooperation with staff member s and management, repeated acts of insubordination and negligence in the performance of duties are ‘misconduct’ and not ‘gross misconduct’. However, leaving before end of shift without permission, which fits easily into the description of being absent without permission is somehow gross misconduct in the second version. At no point does the definition of gross misconduct in either of the disciplinary policies provide for repeated less serious action constituting gross misconduct, instead as stated above, the Respondent’s policy contemplates a single action that is so serious that it justifies immediate dismissal. “Persistent non-cooperation with staff-members and management and negligence in the performance of duties was the reason given to the Complainant in the letter of the 23^rd of December 2015 informing of his dismissal. Both of these issues are defined explicitly as misconduct in the Respondent’s disciplinary procedure. The new disciplinary policy that was provided to the Complainant was appended to the letter of the 29^th of December 2015 informing him of his purported final written warning and thus was provided in the context of leaving shift early being considered a category of misconduct that required a final written warning and not gross misconduct requiring summary dismissal. He was not at that stage dismissed because of the fact that in the new policy it had apparently been upgraded to gross misconduct. However, thereafter in relation to the 10^th of December 2015, it was treated as such and he was summarily dismissed. The Complainant was not given any notice of the fact that the Respondent had decided in the interim to effect a zero tolerance policy.

The difference between the allegations contained in the letter of the 11^th of December 2015 and the letter of the 23^rd of December 2015 raises a further procedural issue for the Respondent. It is clear that all matters taking into account in making the decision to dismiss was not communicated to the complainant at the onset of the procedure. The complainant was informed that only one incident was being investigated and yet the reasons provided for his dismissal was his persistent non-cooperation with staff members and management and repeated negligence in the performance of duties. It is trite law that fair procedures require that all charges and matters being considered be put to the Complainant at the onset in order for him to meet the case against him.

Given that the Complainant was given a final written warning, the day after his written warning was essentially rendered invalid by the decision of the Rights Commissioner, it is submitted that on the 29^th of September 2015, he should only have been given a written warning. Further, given that he was summarily dismissed on grounds of gross misconduct for a similar offence for which he had been given a final write warning, and which did not appear to be gross misconduct two months previously. It is submitted that the Respondent did not have grounds to summarily dismiss him. Summary dismissal is a sanction created for situations in which an employee has committed an act of misconduct so severe that it justifies immediate dismissal. The consequences of that is that it allows the employer to disregard statutory requirements such as the giving of a notice period or the payment of notice in lieu thereof. The fact the Complainant was summarily dismissed by the Respondent when it was not entitled to do so render the Complainant’s dismissal unfair.

Findings:

The Complainant alleges that the main reason for his dismissal was that he made repeated complaints and representations in relation to breaches in health and safety by the Respondent. I do not accept that this was the reason that the Complainant was dismissed from his employment. It is clear from the evidence presented at the hearing that the Complainant failed to complete his shift by leaving the workplace early without the permission of the Respondent. He was made aware by the Respondent that this behaviour was unacceptable.

The complainant was issued with a final written warning as a sanction for leaving work early on the 18^th/19^th of August 2015. The Complainant’s representative appealed this sanction on the grounds that due process and fair procedures were not followed. As a result of this appeal, the Respondent decided to reconvene the investigation into the incidents of the 18^th/19^th of August 2015 and as a result of this process the Complainant was issued with a written warning on the 7^th of December 2015.

On the 8^th of December 2015, the Respondent met with the Complainant to reinforce the company policy in relation to the working practise that was in place in relation to PM routes. The Complainant received a letter from the company on the 10^th of December 2015 stated;

‘Failure to comply with this policy and working practise and leaving the shift without completing the assigned tasks, without good reason, will be regarded as gross misconduct and could result in disciplinary action being taken against you up to and including dismissal.’

On the 10^th of December 2015 the Complainant left his workplace early without permission. An investigation was carried out and the Complainant was dismissed. The Complainant was dismissed when he was still on a written warning. As a result his dismissal was unfair.

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.

Based on both written and oral evidence presented at the hearing, I find that the complaint is well founded. However, the Complainant significantly contributed to his own dismissal by failing to complete his route on a number of occasions. This caused significant issues for the Respondent in relation to customer service issues. I note that the Complainant was out of work for a period of 6 weeks before he found an alternative position. In determining compensation due to the Complainant, I am conscious of the fact that the Complainant contributed significantly to his dismissal. Taking all the circumstances of this case into account, I order the Respondent to play to the Complainant compensation in the sum of €500 for breaches of the Unfair Dismissals Act, 1977. This sum should be paid within 6 weeks of the date of this decision.

Dated: 20^th October 2016