ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005633

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 15/02/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, 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).

1:        Complainant’s Submission and Presentation:

2:        Summary of Respondent’s Submission and Presentation:

The Complainant was fairly dismissed for gross insubordination.

A very detailed and extensive investigation and disciplinary process was followed by the Respondent. The Respondent had detailed procedures in this area.

The issue of following Management instructions had been the subject of proceedings at a Rights Commissioner in 2011. He had received a Final Written warning , on this topic in 2011, and therefore clearly knew the importance of following procedures and instructions.

The Complainant was represented by SIPTU at all stages

An Appeal against the final Dismissal decision was offered and availed of.

There were substantial grounds to justify the Dismissal decision.

3:        Decision:

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:

Did an unfair dismissal take place? Were the rules of Natural justice as set out in SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures followed ?

4:        Legislation involved and requirements of legislation:

Unfair Dismissals Act,1977 and SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures

5:        Decision:

5:1         It is settled law that the role of the EAT and latterly an Adjudication Officer is not to reinvestigate almost de novo a disciplinary case but rather to establish were the rules of natural justice/fair procedures followed by the parties and was the final decision what a “reasonable employer” would have done in the circumstances.

The cases Frizelle v New Ross Credit union [1997] IEHC 137 and Loony & Co Ltd v Looney UD 843/1984 are useful authorities here.

In Loony & Co Ltd v Looney UD 843/1984 it was stated

“It is not for the Tribunal to seek to establish the guilt or innocence of the Complainant --------- Our responsibility is to consider against the facts what a reasonable employer would have done and decided and to set this up as a standard against which the employer’s action and decision can be judged”

In Frizelle Mr. Justice Flood stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures is also central.

5:2         In the case in hand very detailed evidence was presented by both parties. Extensive cross examination by Legal Representatives   / Union Officials was central to the hearing.

The central issue hinged around an incident on the 12^th May 2016 where it was alleged the Complainant had failed to carry out a legitimate Supervisor instruction. The failure to carry out the instruction regarding a priority order had caused the Respondent business to miss an export order and have given rise to considerable difficulties and reputational issues for the Respondent.

The evidence pointed to the fact that a comprehensive and lengthy Investigation process had taken place followed by a considered Disciplinary process . The Complainant was at all times represented by SIPTU ,initially by a lay representative but almost from the start by an experienced full time Official. Comprehensive records of all stages of the process were maintained.

All proper correspondence had been issued and the Complainant had been warned that his employment was at stake.

From a Natural Justice point of view the key meeting was the Final Appeal hearing of the 4^th October 2016. This meeting was chaired by the CEO of the Respondent Mr JX.

A most comprehensive Appeal Report was produced. It ran to six close typed pages and covered in , what I thought was a most fair and balanced manner, almost every argument attached to this case. The Appeal upheld the Dismissal decision.

The only issue I could find with his Appeal was that the Appeal decider was the CEO Of the Respondent. It would have been better if a more independent person had conducted the appeal.

However in mitigation for the Respondent the Appeal Decision is fair and well balanced with all arguments examined and carefully considered. The Complainant was afforded all opportunities to have his side of the case considered. From this detailed evidence I could not find any evidence of bias.

The author of the Appeal Report gave oral evidence and was open to cross examination by the employee Trade Union representatives.

Accordingly ,having considered all the evidence I found that

1. The Rules of Natural Justice were followed to an acceptably high degree. Extensive evidence was gathered and considered. Full representational rights and counter examination of evidence was allowed.

2. The Complainant was well aware of the consequences of his actions –he was no stranger to difficulties arising from failures to carry out instructions.

3. Although a colleague and shop steward maintained that the Complainant was “not himself on the day” there were no major extenuating medical issue presented to justify the refusal to carry out the instruction.

It follows therefore that the Dismissal decision was not Unfair and while, naturally upsetting to the Complainant , was not something that falls outside the bounds of what a “reasonable” employer would have done.

The claim for Unfair Dismissal fails.

Dated:   27^th April 2017