ADJUDICATION OFFICER DECISION

                                                                                             Adjudication Decision Reference: ADJ-00002221

Complaint for Resolution:

Date of Adjudication Hearing: 24th May 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Act 1977 and Section 11 of the Minimum Notice and Terms of Employment Act, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.   A complaint under Section 39 of the Redundancy Payments Act was withdrawn at the Hearing.

The Complainant was employed by the Respondent from 9^th August 2004 to either 30^th November 2015 or 15^th December 2015 and his weekly rate of pay was €741.12c.   The Complainant was submitting that he had been unfairly dismissed by the Respondent and that the Respondent had failed to pay him his minimum notice entitlement at the termination of his employment.

Summary of Respondent’s Position:

The Respondent said the case concerns complaints by the Complainant against them under the Unfair Dismissals Act 1977 – 2015 and the Minimum Notice and Terms and Employment Act 1973 – 2005.   The Respondent said that they deny and refute these complainants in their entirety.

The Respondent said the Complainant commenced employment with them on 9^th August 2004.   The Complainant was a Grade 3 General Operative and his employment was terminated on 15^th December 2015.

The Respondent said that the Complainant was paid his notice entitlement in accordance with the provisions of the Minimum Notice and Terms of Employment Act 1973 – 2005, therefore no entitlement arises under this Act.

The Respondent said that the Complainant alleges that he was unfairly dismissed by them and they said they refute this complaint as he was fairly dismissed for gross misconduct - sleeping during working time while on night shift.   The Respondent said that the Investigation, Disciplinary Procedure and Appeal of the initial decision were conducted in line with their procedures and fair procedures and natural justice were observed by them.

The Respondent quoted from Section 6 of the Unfair Dismissal Act.

The Respondent said that the Complainant’s dismissal arose wholly from his conduct, and as such the dismissal was not an unfair one.

On 10^th October 2015, a named Supervisor arrived at the premises at 10 minutes past midnight.   The Senior Supervisor did a tour of the floor of the premises and noticed that the Complainant was fast asleep in a welding cubicle below the Supervisor’s Office behind the forklift charging location.

10 minutes later, at 20 minutes past midnight, the Complainant was still fast asleep in a seated position.   At 35 minutes past midnight the Senior Supervisor approached the named Night Supervisor to verify break times and was told it was from midnight to 20 minutes past midnight.   The two supervisors proceeded to the cubicle where the Complainant was asleep and the Senior Supervisor awoke the Complainant by calling his name and told him that it was 36 minutes past midnight and that his break was long over.   Later that night the Complainant was informed by the Senior Supervisor that the matter would be investigated further.

An Investigation Meeting took 13^th October; in attendance were the Complainant, his Trade Union Representative, the HR Manager and the Senior Supervisor.  

The Complainant provided a statement on the incident to this Meeting and stated that he was experiencing back and shoulder pain after working with large materials.  He stated that he had initially taken paracetamol, but his mother gave him a stronger pain killer, ‘Diazepam’.   The Complainant said he had consulted with his GP regarding the medication and they had permitted him to it take once every 12 hours, while also advising that it was strong medication and that he might experience dizziness or tiredness.   He said that he did not wait the correct interval between taking the medication as he had experienced pain before his shift had begun; he further stated that he was exhausted at midnight.   He claimed he did not go the canteen as he was feeling tired and he wanted to rest alone.   He said he had set his telephone alarm, but it did not work as he had taken the vibration off.   He said he usually would bring his telephone with him and set the alarm if he was resting in his car as he did not want to fall asleep during a night shift.   He said that he did not know the effects the medication could have as his Doctor had only stated it may affect him.

The HR Manager and the Senior Supervisor met with the Night Shift Supervisor as part of the Investigation; he stated that he had last seen the Complainant at 11.45pm and had noticed nothing unusual about him; he stated the Complainant was sleeping in a welding cubicle and not at his work station; furthermore he said he was not aware of the Complainant’s whereabouts until it was pointed out to him by the Senior Supervisor.

On 13^th October, the HR Manager wrote to the Complainant to sign and date his statements and asked him to make amendments where necessary.   She further informed the Complainant that to further that Investigation that she required the Complainant to attend at Occupational Health to assess his sore back.   In addition she stated they would require to contact the Complainant’s GP.

On 15^th October the Complainant attended an appointment with Occupational Health.   He stated he had been suffering from back pain and had contacted his GP to ask if he could take medication that his Mother had given him, he said the medication was ‘Diazepam’ and again stated his GP had given him permission to take the medication.   He gave Occupational Health permission to contact his GP.

On 19^th November, the HR Manager contacted Occupational Health to confirm if the Complainant’s GP had in fact given him permission to take ‘Diazepam’ and she was informed that Occupational Health had spoken with the Complainant’s GP and they had not recommended any treatment and that the Complainant was not on medication.

The Investigation found that the Complainant had not reported any back pain or work injury and in addition his GP denied approving the medication, following this disclosure the Complainant’s credibility was placed in jeopardy.   The HR Manager recommended that the matter be referred on to a Disciplinary Hearing, due to the Complainant having lied to the Respondent, sleeping on Company time and due to the potential danger of the Complainant being on non-prescribed drugs.

The Complainant was requested to attend a Disciplinary Hearing on 27^th November.   In attendance at the Meeting was the Complainant, his named Trade Union Shop Steward, the Operations Manager, a named translator and a named note taker.   The Operations Manager asked the Complainant about his initial statement regarding his GP advising him to take one tablet every 12 hours.   The Complainant responded that the Receptionist rather than his GP, had in fact told the Complainant that the medication would do him no harm.   He said he went on this view as there was a one week wait for an appointment with the Doctor, which was too long.

The Operations Manager informed the Complainant that it was his responsibility to notify a Supervisor if he was taking any medication or if there was a risk of dizziness or tiredness that would create a dangerous work environment for his work colleagues.   At the end of the Meeting, the Operations Manager, stated that the case had become more serious due the Complainant misleading the Respondent, breaking health and safety guidelines and not informing his Supervisor of medication that he was taking that could have had an impact on his work.   In addition the case was sufficiently serious in the first instance as the Complainant had fallen asleep in a concealed area.   At the end of the Meeting it was agreed to reconvene on Monday 30^th November for a disciplinary outcome Meeting.

The Disciplinary Hearing reconvened on 30^th November.   The Complainant was informed that because of the nature of the incident, the clear breach of health and safety guidelines and misleading information given by the Complainant the Operations Manager had concluded that she had no choice but to dismiss the Complainant, effective 1^st December and she further informed the Complainant that he had the right to appeal the decision to the General Manager.

The decision was issued in writing to the Complainant on 1^st December.

The Complainant exercised his right to appeal the decision and the Appeal Hearing was head on 11^th December.   In attendance were the Complainant and his Shop Steward, a translator, the General Manager and the HR Manager as a note taker.   At the Meeting the Shop Steward stated that it was not the Complainant’s intention to mislead the Respondent nor his intention to sleep at work.   On 15^th December the General Manager issued his decision in writing to the Complainant and he rejected the appeal and upheld the dismissal decision.

The Respondent said that on 15^th December the Complainant was issued with his final pay that included 6 weeks notice pay, without precedent, due to the duration of the Investigation caused by the non-response from the Complainant’s GP.

The Respondent said that the Complainant’s misleading information, coupled with the possible health and safety risk to him and his work colleagues as a result of taking medication that was not prescribed to him added to the severity of the case and they said this left them with no other alternative but to dismiss the Complainant.

The Respondent submitted that based on the foregoing that the Complainant’s complaints were not well founded and should be rejected.

Witness No. 1.   The Witness said he was the Area Supervisor for 18 years and part of his job was supervising the chargehand/supervisors.   He said that he regularly made spot checks for anything out of order.   On the night in question he visited the premises to perform a spot check that all was in order and/or if anything was out of order.   He said that he did a tour of the premises.   He said that at 12.10 he did a tour of the building and most employees were on breaks.   He said he went up the stairs and he could see all around from there.

The Witness said one on the things he checked was if breaks were abused.

The Witness said that from his Office he observed the Complainant asleep at circa 12.20am and he watched operators return to work and most returned.   He said that just before 12.30am he saw the Complainant still asleep.   The Witness went to see the Chargehand to confirm or get clarity on breaks and it was confirmed to him that that the break was from 12.00 to 12.20am.

The Witness said that he and the Chargehand went down the floor past the forklifts etc and found the Complainant asleep in the cubicle and this was at approx. 12.36am.   The Chargehand called the Complainant’s name and he woke up.   The Complainant was asked “Are you aware what time it is?”, it was 12.36pm and the Complainant was told it was long past his break time.   The Complainant was asked was he ‘okay’ and he said he was ‘okay’ that he just fell asleep, that he took his break and his ‘phone alarm did not work.   The Complainant was told to go back to work and they (the Witness) would send for him.   In response to a question the Witness said that he (the Witness) had no fear for the Complainant’s safety at that stage and so told him to go back to work.

At 12.45 the Witness called the Complainant to a Meeting.   The Witness informed the Complainant that he had fallen asleep at work and that that was serious matter.   The Complainant said it had never happened before that he had fallen asleep at work.   The Complainant was asked did he want to say anything and how was he feeling?   The Complainant apologised and said he was sorry for what had happened.   The Witness said that he would lodge a Report with HR and there would probably be an Investigation.

The Witness confirmed that he was present when the Complainant was questioned at the Investigation.

The Complainant that he had issues with the Witness, that some years previously he had reported the Witness for being rude to him when the Witness was yelling at him and being rude to him and he suggested that this may have led to the Witness to being biased against him.   In response to this the Witness denied that he was in any way biased against the Complainant; he said the matter referred to by the Complainant had occurred 11 years previously and was long since forgotten.

Summary of Complainant’s Case:

The Complainant said he commenced employment with the Respondent on 9^th August 2004 and he was employed as a welder under a written contract of employment, which remained in place throughout his employment with the Respondent.

The Respondent said that the complaints today comes from an incident that occurred on the morning of 10^th October 2015 while the Complainant was at work at the Respondent’s premises.

The Respondent’s named Senior Supervisor arrived at the premises at approx. 0.10am in order to carry out an inspection of the factory floor.   According to the Senior Supervisor he arrived on to the premises unnoticed and he conducted an inspection tour of the factory floor from both ground level and from on high and he noticed nothing out of the ordinary at ground level, but on arriving in the Supervisor’s Office he noticed that the Complainant was not at his work station.  

The Complainant was observed by the Senior Supervisor asleep in a chair in the Welding Office.   The Senior Supervisor ascertained that the Complainant was in fact on his break at the time he was observed sleeping in the Welding Office and the Senior Supervisor confirmed with a named Chargehand that the Complainant was not due to resume work until 00.20am.   These 2 men proceeded to the Welding Office and at 00.36am woke the Complainant by calling his name.   The Senior Supervisor described in his statement that the Complainant was very startled when he awoke.

Shortly after the incident, the Senior Supervisor called the Complainant to his Office and told him that “this was a very serious offence.”   The Complainant replied that he “never falls asleep”.   The Complainant was informed that the incident would be referred to the Human Resources Department he apologised and was instructed to go back to work.   The Respondent said it should be noted that the Senior Supervisor criticised the Chargehand for his failure to notice the Complainant sleeping in the Welding Room.

On 13^th October 2015, a Meeting took place at which the Complainant was represented by his Trade Union Representative.   The Complainant informed that he believed that it was medication that caused him to fall asleep, he said that he had slightly injured his back when lifting a small number of heavy objects at work over a 2 day period and that 2 days later the pain in his back had worsened enough to necessitate him taking paracetamol.   He informed that his condition did not improve and that the pain was actually exacerbated on Friday afternoon, 9^th October 2015, when he bent down to pick up his little boy.   The Complainant said that his Mother had given him Diazepam in order to give him relief from the pain in his back and shoulder.   The Claimant also told the Meeting that he had confirmed with his General Practitioner that it was in order for him took take this medicine (Diazepam), however that did not take place.

The Complainant told the Meeting how it was that he came to be tired on the day; he said he had been unable to sleep due to the pain he was experiencing and that when it worsened on the Friday afternoon prior to him commencing work on the night shift, he decided to take a second Diazepam only 8 hours after taking the first.   The instructions for Diazepam recommend that a person should not take more than one of these every 12 hours.   He stated that his reason for doing this was to ensure he did not miss work and that he would be able to get through the night shift.   He said that shortly before his break that was due to commence at midnight, he began to feel tired.   Once his break began he went to the Welding Room so he could rest during his break, he declined to go to the canteen and instead sat down in a chair in a slightly les noisy section of the premises away from the machinery.   He insisted that he had set his alarm (on his mobile ‘phone) to wake him at the end of his break.   He informed that on occasion he would go out to his car and rest for 20 minutes, but that he always returned on time due to the fact that he would set the alarm on his telephone.   The next thing the Complainant can recall is the Senior Supervisor calling his name at 00.35am and that he was shocked that he had let this happen.

Towards the end of the Meeting the Complainant informed that he had not reported the injury to his back at the time as the pain was not immediate.   He also clearly stated that he did not know that the medicine would affect him in that manner and that there had been no similar incident recorded in his 11 years working with the Respondent.   The Trade Union Representative stated that the Complainant’s impeccable record spoke for itself and that he clearly had not intended for this to happen.  

The Respondent said that the Senior Supervisor accepted that he only had to call the Complainant’s name once to awaken him and that he was startled when he opened his eyes.

The Claimant’s Chargehand was interviewed the same day and he expressed his surprise about the Incident.   He said that he had observed the Complainant working as normal at 11.45pm shortly before his break was due.   He confirmed that the Complainant had not fallen asleep on the factory floor and had gone to the Welding Cubicle and he confirmed that to his knowledge the Complainant had never gone missing during a shift before.

On 15^th October 2015, the Complainant attended the Respondent’s Occupational Health Nurse and he gave her permission to check with his Doctor that he had been given the all-clear to take his Mother’s medication.   On 19^th November 2015, the Occupational Health Nurse informed the Respondent that no such assurance had been given to the Complainant by his General Practitioner.

The Complainant was informed by letter of 1^st December 2015 from the Operations Manager that his actions amounted to gross misconduct and had severed all trust with the Respondent.   He was told that he had seriously breached ‘health and safety’ and he was dismissed from his job with immediate effect and he was informed he would be paid for 6 weeks notice.

The Complainant appealed this decision and his appeal was heard by the General Manager.   He was informed by letter that his Appeal was unsuccessful and the dismissal decision stood.

The Complainant said that in his written Contract of Employment there is a specific section that sets out when an employee can expect to receive notice of the termination of her/his employment as is set down in the Minimum Notice and Terms of Employment Acts 1973 – 1991.   This section states that “except in exceptional circumstances justifying immediate termination of your employment by the Company, you will be entitled to receive the appropriate period of notice.   The Complainant said there is a separate clause in the document that states: “your employment may be terminated without notice for serious misconduct or failure to carry out such duties as may be assigned to you by the Company from time to time.”

The Complainant said that it can only be taken from these terms that a termination of employment for serious misconduct would be an immediate one with no notice or payment in lieu of notice.

The Complainant submitted that the Respondent’s actions with regard to his dismissal are wholly inconsistent with the policies contained in his contract of employment.   The Complainant said that when the letter of dismissal from the Operations Manager of 1^st December 2015 is read, it is readily apparent that the Respondent cannot assert gross or serious misconduct with a straight face.   The Respondent offered to pay the Complainant wages equating to the value of 6 weeks notice.   The Complainant said that the statutory maximum that the Complainant was entitled to for 11 years continuous service was in fact 6 weeks.   The Respondent submitted that the Respondent simply would not have made such an offer had they considered that their categorisation of gross misconduct was the correct one.

The Complainant said that his Contract of Employment provides for 4 internal disciplinary stages that should be adopted when disciplining employees as follows:

Stage 1   The employee will be verbally warned of the specific aspect of work or conduct that is below standard.   She/He will also be advised of the improvement that must be made.

Stage 2    In the event of continued failure to meet required standards, the employee will be issued with a written warning.   She/He will also be advised of the improvements that must be made.

Stage 3 If the problem still persists the employee will receive a final written warning plus suspension with or without pay pending a full investigation

Stage 4   If the problem remains, the employee concerned will be dismissed after full consideration of the circumstances.

It was submitted that the conduct of the Senior Supervisor was a fundamental breach of these procedures.   The Complainant said the role of a Senior Supervisor is to support, encourage and motivate employee and subordinates.   In this instance the Senior Supervisor noticed that the Complainant was sleeping at a time at which he was entitled to so do.   Considering that the Senior Supervisor was focussed solely on resolving this particular situation on the night in question, it is difficult to understand his decision to allow what he considered a “very serious offence” and what the Respondent characterised as “gross misconduct” and a threat to the safety of those in the factory, to continue for 25 minutes from the time he first observed it.   It was submitted that the Senior Supervisor reacted in an inappropriate and unfair manner given his level of experience.   It was submitted that the entire incident and all that followed could have been avoided had the Senior Supervisor simply woken the Complainant as soon as he observed him asleep and issued him a Stage 1 Verbal Warning for sleeping anywhere on the premises.   The Complainant said that the Senior Supervisor’s conduct amounts to entrapment and is highly inconsistent with idea that he posed any immediate danger to himself or others.   The Complainant said that being the case there cannot be any merit in dismissal on the basis of behaviour amounting to gross misconduct.

The Complainant said any allegation as to his inability to perform his duties either prior to being observed sleeping, or after, has been dispelled by the Senior Supervisor.   Having discovered the Complainant was asleep in the Welding Room, woken him, and then reprimanded him, the Senior Supervisor then sent him back to work; clearly he had no concerns over the Complainant’s level of ‘compos mentis’ or ability to finish the remainder of his shift.   During his 11 years service with the Respondent the Complainant never once received a complaint in relation to punctuality, work performance or anything of that nature.   His single warning was for making a visit to Poland at a time when he was unfit for work.   The Complainant said the Respondent’s failure to reprimand him, using their own disciplinary procedures amounts to a fundamental breach of fair procedures.

The Complainant quoted from Section 6 of the Unfair Dismissals Act 1977, and submitted that the burden of proof falls on the Respondent to prove that the Complainant was fairly dismissed.

It was submitted that the obligation on an employer to act reasonably in circumstances where they seek to rely on the “conduct” of an employee as the justification for a dismissal is well summarised in Cox, Corbett & Ryan on Employment Law in Ireland, which they quoted from and it was submitted that the manner in which the Senior Supervisor dealt with the initial incident was entirely unreasonable.  

It was submitted that the Respondent’s decision to summarily dismiss the Complainant on foot of the Senior Supervisor’s incompetence must be considered as entirely inexcusable and unfair.

It was submitted that the Complainant would never have felt the need to be untruthful about his GP having agreed the taking of the ‘Diazepam’ had he not felt unnecessarily threatened.   The Complainant was unreasonably and unfairly put is fear of losing his job for what was a very minor breach of company rules and it is understandable that he would say anything at that moment in the hope of keeping his job.   It was submitted that the situation and Complainant’s reaction to it must be observed from the point of view of an employee who had an impeccable employment history with the Respondent.   The heavy handed manner in which he was dealt with caused him to embellish the legitimacy of the medicine taken.   It was submitted that the medicine in question was entirely appropriate to treat muscle spasm and that the Complainant did not intend to break any of the Respondent’s rules or guidelines, something he had not done in the previous 11 years.

The Complainant submitted that it is an axiomatic principle of Irish Employment Law that an employee has a contractual and constitutional right to fair procedures and he quoted from Cox, Corbett & Ryan in that respect.   It was submitted that this obligation includes a number of well established elements of fair procedure and these include the following: the right to a fair oral hearing as recognised in Mooney -v- An Post; the rule against bias as recognised in Cassidy -v- Shannon Castle and Heritage Limited; the right to a properly focused disciplinary investigation that is conducted promptly, fairly and completely, as recognised in Redmond -v- Ryanair; the right to be given notice of the fact of pending disciplinary investigations and disciplinary hearings and the nature of the charge against a person, as recognised in O’Ceallaigh -v- An Bord Altranais; the right to be represented at disciplinary hearings, as recognised in Burns -v- The Governor of Castlerea; the right to presents one’s case, examine witnesses’ and challenge evidence, as recognised in Shortt -v- Royal Liver Insurance; the right to a proper appeals mechanism, as recognised in O’Leary -v- Eagle Star Life Assurance Company of Ireland; and the right to be provided with reasons for the determination of any investigation and hearing.

It was submitted that the Respondent had circumvented their own disciplinary procedures, which they and the Complainant were familiar with and had contracted into and this must be regarded as fundamental breach of fair procedures such that any dismissal arising from same is to be regarded as unreasonable, unfair and unjustified.   It was submitted that the Respondent’s own actions, at both Senior Staff and Management levels simply do not tally with the proposition that the Complainant’s behaviour amounted to anything resembling or approaching misconduct, be it gross or otherwise.

It was submitted that there must be proportionality between the incident giving rise to a disciplinary sanction and the sanction itself if it is to be relied on as grounds justifying the dismissal of an employee.     The Complainant quoted from the determination of the Employment Appeals Tribunal (EAT) in the case of Bolger -v- Dublin Sport Hotel Limited [UD 45/85] in which they said that EAT held that the failure to give any consideration of lesser sanctions will, in and of itself, result in a dismissal being unfair and the Complaint referred to and quoted from the determination of the EAT in Fitzpatrick -v- Superquinn [UD 452/1984] in support of their decision.   The Complainant also referred to the case of Samantha Marshall -v- Conduit Enterprises Limited [UD 1293/2013] in support of their position.   It was submitted that this last case referred to is practically on all fours with the instant set of facts.

The Complainant gave evidence of his efforts to secure alternative employment and mitigate his losses.

Based on the foregoing submissions the Complainant sought a finding and decision that he was unfairly dismissed and that his complaint be upheld.

Findings and Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 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.

Section 11 of the Minimum Notice and Terms of Employment Act 1973 requires that I make a decision in relation to the entitlement or otherwise of the Complainant to minimum notice in accordance with the provisions of Section 4 of the 1973 Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I do not find many of the submissions of or on behalf of the Complainant to be at all credible; they do not make sense and are not accordance with established facts.

The submissions on behalf of the Complainant in relation to ‘Diazepam’ and the taking of same by him are not at all accurate and indeed are quite worrying.

‘Diazepam’ is a medication that is only available on prescription.   It is an anti anxiety medication and can also act as a muscle relaxant and it is stated on the medication that it may make a person drowsy.  I do not understand how it could be submitted on behalf of the Complainant that it “was an entirely appropriate tablet for the Claimant to have taken”.   No authority for such a statement was given and I have great difficulty understanding how it can be submitted that it is appropriate for medication for which a prescription is required can be an appropriate medication for a person for whom it is not prescribed to take or use.     It is never appropriate for a person to take medication prescribed for another.    These submissions are without merit and are entirely rejected by me.

The Complainant’s submissions also stated that the instructions contained with the ‘Diazepam’ state that a person should not take more than one of these tablets every 12 hours, but he took a second one only 8 hours after the first one.   So here we have a person reporting for work, after taking prescribed only medication not prescribed for him and for which it is stated may make one drowsy, and taking it more frequently than recommended for persons for whom it is prescribed.   Clearly this could only further increase the risk of a person becoming drowsy, with all the health and safety implications of that particularly for a person in a factory environment such as the Complainant.  

This is not just speculation in the instant case as the Complainant states that just before his break he felt tired and during his break he did in fact fall asleep and he told the Senior Supervisor that he “never falls asleep” he also told the Investigation, the Disciplinary Hearing, the Appeal Hearing and the Adjudication Hearing that he never slept or fell asleep at work before, and indeed he actually stated to the Respondent that it was the medication that caused him to fall asleep.

It is also a fact that despite being obliged by his terms and conditions of employment to inform the Respondent if he is on prescribed medication he did not do so.

Of equal if not greater significance in relation to the decision to dismiss the Complainant was the fact that he lied to the Respondent in relation to taking of the ‘Diazepam’ medicine telling them a number of times that this had been authorised by his General Practitioner when it had not.   It should be noted that this ‘information’ was volunteered by the Complainant himself and it was not the case that he was asked this.   It is stated on behalf of the Complainant that he “would never have felt the need to be untruthful about his General Practitioner having condoned the taking of the Diazepam had he not felt unnecessarily threatened.   The Complainant was unreasonably and unfairly put in fear of losing his employment….”   This is not a fair depiction of the position; the Respondent, as they are obliged to do in accordance with fair procedure and well established law and precedent, must inform an employee of the possible or potential consequences if the allegations or charges against them are upheld and that is all they were doing.   These submissions are also without merit and are rejected by me,

It was also submitted on behalf of the Complainant that “the heavy handed manner in which he was dealt with caused him to embellish the legitimacy of the medicine”.   Apart from the fact that as stated above there was nothing heavy handed in the manner that the Complainant was treated the Complainant did not “embellish” the legitimacy of the medicine; rather he told direct and repeated lies about it.   It should be noted that this, or rather these, as it was said repeatedly by the Complainant was not something said in a panic or under pressure when he was found asleep at work According to his own submissions it was first volunteered or raised by him (and not in answer to any question or prompting) at a meeting (the Investigation Meeting) on 13^th October 2015, some 3 days after the incident, when he was accompanied and represented by his experienced trade union Representative.   Accordingly this was a considered and deliberate submission or statement made by him and repeated by him and never withdrawn by him until his GP confirmed otherwise.

Nor can I accept that, as suggested by the Complainant, it was some else’s fault that he was telling lies, the Complainant is responsible for his own actions and he cannot shift the blame or responsibility to anyone else.   In addition it should be noted that there is no suggestion that anyone else, and certainly not the Respondent, suggested or proposed that he tell this lie.

I cannot accept that this statement was not intended to mislead the Respondent; it could not have been made for any other purpose but to mislead the Respondent, however foolish that expectation may have been.

It should be noted that this lie and all that followed from it was one of the major reasons why the Respondent decided to dismiss because of the deliberate lies told to them by the Complainant and the breach of trust involved.

The Complainant submits it was not his intention to sleep during his break at work; however he also submits that he set his alarm to wake him at the end of his break.   These two statements are not compatible.   Plainly the Complainant went to a quiet area to sleep and failed to return to work when due.

The Complainant refers to the alleged wrong behaviour of the Senior Supervisor, and submits that this behaviour is both a fundamental breach of fair procedures and renders the dismissal as unfair.  

It was submitted on behalf of the Complainant that the role of the Senior Supervisor is to support, encourage and motivate employees and subordinates.   No authority for this description of the role of the Senior Supervisor was given and it certainly is not in accordance with the description of his role given by the Senior Supervisor at the Hearing or my own knowledge of that role from a great many years dealing with such roles in manufacturing.   The Senior or Area Supervisor said it was his role to supervise the other supervisors/chargehands to ensure they were performing their work to the required standard and to ensure that the rules and procedure and practices were being properly carried out by the (ordinary) employees.   He said that he regularly did spot checks on all shifts to check a number of issues including that breaks were not being extended or abused by employees and that supervisors/chargehands were properly monitoring this.   I note that this fact was actually confirmed by the submissions of the Complainant when they said it should be noted that the Senior Supervisor criticised the Complainant’s Chargehand/Supervisor for his failure to notice the Complainant sleeping during and after his break time.   I also note that it would be well known to the Complainant along with all his colleagues that spot checks were done to ensure that breaks were not abused by employees.

I was presented with no credible evidence that the Senior Supervisor was doing anything wrong or inappropriate or that he was in any way in breach of fair procedures or of the Respondent’s procedures     I do note that the Senior Supervisor did instruct the Complainant to resume his work, both immediately after he and his colleague woke him up from sleep and after the later meeting with him and accordingly must have considered him fit to work and not a potential danger to himself or others.   However I note that the Senior Supervisor was not aware at that time that the Complainant had taken prescribed medicine, or was suffering from back pain, or had been losing sleep; those facts only emerged later and it was also before the investigation at which the Complainant submitted that he had not been sleeping for some of the previous day and that he was suffering back pain at the time; all of these were not facts that were made known to the Senior Supervisor at the time.   I note that it was stated by the Senior Supervisor in his direct evidence and was not disputed by the Complainant that he asked the Complaint immediately after he woke up was he okay and the Complainant responded that was okay and had just fell asleep, it was on that basis that the Senior Supervisor told him to go back to work.

It was also submitted by the Complainant that the “the Senior Supervisor’s conduct amounts to entrapment……”     This was also submitted on behalf of the Complainant during the Investigation, Disciplinary and Appeal procedure.   I cannot accept this submission, which is entirely without merit.

Entrapment is defined as: “The luring by a police officer, of a person into a crime, so that he may be prosecuted for it” (source Collins English Dictionary).

Plainly the Senior Supervisor did not lure the Complainant to a quiet area, the Welding Room to sleep there, during and beyond his break.   Indeed the Complainant was already there and asleep when the Senior Supervisor arrived at the premises.   The Senior Supervisor cannot be held responsible in any way for the Complainant’s actions.   This submission is entirely without merit or logic and it is rejected by me.

The Complainant submitted that the fact that the Respondent paid him 6 weeks’ notice pay at the termination of his employment means that the Respondent cannot assert that there was gross or serious misconduct by the Complaint as they would not have made such a payment had they considered that the categorisation of gross misconduct was the correct one.

The fact that an employer affords or pays an employee minimum notice payment does not mean that the employee cannot be guilty of gross or serious misconduct.   While it is true to state that an employer is not obliged to afford or pay an employee minimum notice entitlements in circumstances where gross or serious misconduct has been found to have occurred that justifies summary dismissal there is nothing in law, precedent or practice, that would prevent such a position, the two positions are not mutually exclusive.   The Complainant correctly quotes his written contract as stating your contract may be terminated without notice for serious misconduct and not shall; plainly this envisages circumstances where notice entitlements may apply and allows discretion to the Respondent, this is quite common in employment law to allow some element of discretion to the employer.   What the Complainant is inviting me to conclude is that because the Respondent behaved reasonably and decently towards him in exercising their discretion by paying him his notice pay that this fact should now be used against the Respondent to conclude that the Complainant was unfairly dismissed, and this despite the fact that this payment was agreed with the Complainant and his Trade Union Representative at a meeting on 11^th December 2015.   I see no merit in this submission and it is rejected by me; a more relevant question might well be if the Complainant considers as submitted that the Respondent has paid him his minimum notice entitlements, why has he submitted a complaint under the Minimum Notice & Terms of Employment Act 1973 that he did not receive his minimum notice entitlements.

The Complainant submitted a copy of the Determination of the Employment Appeals Tribunal (EAT) on the case of Samantha Marshall -v- Conduit Enterprise Limited [UD 1293/2013] in support of their position and it was submitted that that was “practically on all fours” with their own case.   However plainly and patently this is not the case and in that respect I note the following:

• In the Determination the Tribunal states that they “also takes into account the candour displayed by the Claimant in dealing with the allegation.”    Plainly the same cannot be said of the Complainant in the instant case.   Indeed the direct opposite is the case; there was a total lack of candour displayed by the Complainant in the instant case in dealing with the complaints against him.   He was repeatedly untruthful in dealing with the matter.   This is a very substantial difference in the two cases.    

• The Claimant in that case did not, unlike the Complainant, go away somewhere quiet to sleep and fail to return to her place of work after her break had expired.   Again this is a substantial difference in both cases.

• The Claimant in that case was described by that Respondent Employer as a “brilliant operator”.   No such description of the Complainant by the Respondent was made to me at the Hearing.   Again this is a substantial difference in the two cases.

I find that both cases are substantially different; the findings and determination in Marshall are of no assistance or value in deciding the instant case and the Complainant’s submissions in that respect are rejected by me.

I note and find as follows:

• The Complainant did not inform the Respondent before he commenced work on the day in question that he had injured his back at work and that this had caused him to be unable to sleep due to the pain and that accordingly he felt tired.   Despite the obvious potential health and safety implications of such a position and the requirement to inform the Respondent of such a position the Complainant failed to do so and this was a serious failing on his part, that most definitely required action by the Respondent.   In many employments this would be considered to be serious or gross misconduct because of the obvious potential health and safety implications.

• The Complainant did not inform the Respondent before commencing work on the day in question that he was using/taking prescribed medication, despite the fact that he is obliged, by his terms and conditions of employment to so do and the warning on the medication, ‘Diazpam’, that it may make a person drowsy and indeed plainly that was the effect in this case, as the Complainant actually stated that the medication made him sleepy.   In addition this was worsened in the instant case by the fact that the Complainant took it for a second time 4 hours earlier than recommended in the warning of the medicine.   This was a very negligent act by the Complainant and would be a dismissible offence in any employment.    

• The Complainant untruthfully told the Respondent that he had been authorised by his General Practitioner (GP) to take ‘Diazepam’ when he had not.   The Complainant repeated this lie repeatedly and never withdrew it until after his GP eventually denied it.   Apart from the fact that this lie delayed the investigation for a considerable length of time, it was plainly intended to misled the Respondent and it raised fundamental questions as to whether they could have any trust in him and his truthfulness going forward; it raised questions as to whether the Complainant had severed the minimum level of trust necessary to sustain an employer/employee relation going forward.   This would most definitely be a dismissible offence in any employment.

• It transpired that the Complainant had taken prescribed medicine, not prescribed for him and that is stated to cause drowsiness, before reporting for work on the day in question.   This is highly irresponsible behaviour, no reasonable person could possible conclude that it was proper, responsible or reasonable to take prescribed medicine prescribed for another person.   Any employer would be obliged to consider if they could continue to employ a person who behaved in such an irresponsible and potentially dangerous fashion and I note that this was one of the main reasons justifying the dismissal by the Respondent.

The Complainant could easily and readily have avoided all of this problem, by doing what any reasonable person would have done and contacting the Respondent in advance to confirm he was unable to work and subsequently sending in appropriate medical certificates.

The behaviour and actions of the Respondent in this case were within the band of the reasonable actions of a reasonable employer in possession of the facts, information and evidence they were in possession of and accordingly I find that the Complainant was not unfairly dismissed by the Respondent.

Based on the foregoing findings the following are my decisions in relation to the complaints under the two Acts.

Unfair Dismissals Act 1977:                                                                     .                                                                                                                                        I declare that the Complainant was not unfairly dismissed by the Respondent and that the complaint under Section 8 of the Unfair Dismissal Act 1977 is not well founded it is rejected and is not upheld.

Minimum Notice & Terms of Employment Act 1973:

I note that I were no submissions made by the Complainant in relation to the complaint made under this Act, and I further note that both parties actually submitted that the Respondent actually paid the Complainant his minimum notice entitlement , see page 2 of this document for the Respondent’s submission in that respect and see page 7 for the Complainant’s.   In circumstances where both parties have submitted that the Complainant actually received his minimum notice entitlement I can have no grounds to uphold a complaint in relation to the alleged non-payment of minimum notice entitlement in accordance with the provisions of the Minimum Notice and Terms of Employment Act and I must decline to do so and reject the complaint, which is not upheld by me,                    

In addition I declare that there was no entitlement to minimum notice in circumstances where the Complainant was justifiably summarily dismissed by the Respondent.  

Accordingly I must declare that the complaint under Section 11 of the Minimum Notice & Terms of Employment Act 1973 is not well founded it is rejected and is not upheld.

Dated:    1^st September 2016