ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008133
Parties:
ComplainantRespondentPartiesA Salesman A Furniture Company
Complaint(s):
ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00010664-001 05/04/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00010664-002 05/04/2017 Date of Adjudication Hearing: 29/09/2017 Workplace Relations Commission Adjudication Officer: Caroline McEnery
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 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.
Background:
The Complainant was dismissed without any notice. The Dismissal occurred due to an allegation of insubordination and refusing to carry out duties when required by his manager. This followed a period of time where the working relationship had been deteriorating for a number of months. This included violent, abusive, dangerous, threatening and intimidating conduct as outlined by the Respondent. The timeline for having this case heard by the Workplace Relations Commission is outside of 6 months, therefore an extension is required in line with the legislation for reasonable cause. The circumstances is a cancer diagnosis was received by the Complainant just after the dismissal occurred. The Complainant did not get legal advice due to his illness and that’s why he is outside of the 6 months. The Respondent didn’t have any issue based on the medical evidence presented and the Adjudicator accepts the reasonable cause justification presented on this occasion and proceeded to hear the case.
Summary of Complainant’s Case:
The Complainant commenced employment with the respondent on the 13th of February 2012. The Complainant states that a copy of the Disciplinary Procedure was provided to the Complainant along with a letter suspending him from his employment from 8th of June 2016. The Complainant was not provided with any of the documentation relied upon by the Respondent in their investigation. The Complainant states that he was not given an opportunity to state his case. The Complainant states that there is no evidence of any of the allegations set out in the Investigation Report. The Complainant states that he was suspended on the 8th of June 2016 with the Investigation Report being finalised by the Respondent on the 9th of June 2016. The Complainant also states that he did not receive any warnings or disciplinary sanctions in relation to the allegations of March 2016 that are referred to in the report yet the Respondent clearly relied upon these meetings. The Complainant stated that there were a number of witnesses and complainants referred to which the complainant did not get the opportunity to speak with. The Complainant states that at no time was he given the opportunity to be represented. The Complainant states that he was not given the right to a fair and impartial hearing. The Complainant states that he was not given the opportunity to appeal the decision. The Complainant believes that the sanction proportionality was unfair as the Complainant had an unblemished record. The Complainant representative states that he was employed for over 4 years with the Respondent and consequently he is entitled to two weeks paid notice which he did not receive. The Complainants representative outlined that due to the complainant’s age (60 years old) and health that it is unlikely that he will be in a position to obtain a similar position. The Complainant representative claims that if he had not been unfairly dismissed that he would have been able to continue work up until he was 65 years of age even if it was on reduced hours.
Summary of Respondent’s Case:
The Respondent states that the Complainant was dismissed for Gross Misconduct for 2 issues – that he refused to do his job and that he was abusive and intimidating. When asked to wash the windows the Complainant refused and asked why the manager could not wash the windows herself. The Complainant then called his manager a derogatory term using inappropriate language. The manager reported the matter and the disciplinary initiated. The Complainant was suspended and then the investigation occurred. There was no dispute regarding the incidents that occurred. The Respondent stated that the investigation was conducted by the Financial Controller. He also gave the complainant a letter confirming his suspension. The Respondent stated that the Complainant was suspended on full pay and then due to the nature of the incident it was deemed Gross Misconduct. The Respondent stated that the first meeting took 5 minutes to suspend him and that there were no notes to that meeting. The Financial Controller presented oral evidence to the Adjudicator. The Financial Controller met the complainant and confirmed that there were other previous incidents taken into account. The Financial Controller stated that the report was compiled and given to the owner for review. The Financial Controller stated that there was a meeting on the 10th of June and that this was the second meeting with the Complainant. The Complainant received the report on this date. The Complainant was told that he could have a witness present at the meeting with him. The respondent nominated the witness and the Complainant accepted the witness. The Owner stated that he was told about the incident on the day that it occurred. The Owner stated that he had appointed the Financial Controller to conduct the investigation. The Owner stated that he received the report from the investigator. The Owner stated that he dismissed the complainant as a result. The Owner stated that he didn’t meet the complainant to tell him he was dismissed and that the Investigator had on his behalf given the decision to the Complainant. The Respondent states that the Complainant was told he could appeal the decision.
Findings and Conclusions:
The process that was followed in relation to this disciplinary process did not follow the company’s own disciplinary procedure or the Rules of Natural Justice. The Complainant received no opportunity for representation, no opportunity to state his case, received no dismissal letter or did not receive appeal details in writing. The Complainant had nearly 4 years’ service with the respondent and no previous warnings were on the employees file. There was no separation of process as the person who conducted the investigation and the owner were jointly involved in all aspects of the process due to their oral evidence. Although the Complainant contributed to the matter he did not receive a fair process due to the points outlined above.
Decision:
Section 7 of the Unfair Dismissals Acts, 1977 – 2015 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. Considering the findings the Adjudicator finds that the Complainant should be compensated for the unfair dismissal. The Complainant is unavailable for work due to illness since August 2016 but will be available for work shortly. This was confirmed by the Complainant by oral evidence. Based on all the evidence presented, the Adjudicator awards 6 months’ salary which equates to €9,180. Although the rules of natural justice and the companies own disciplinary procedure were not followed the complainants behaviour which contributed to his dismissal and his unavailability for work due to illness was taken into account in reaching the award. Section 11 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to the minimum notice claim consisting of a grant of redress in accordance with section 12 of the 1973 Act. In addition to this I award the complainant 2 weeks under the notice of Minimum notice Act as the complainant did not receive any notice payment following his dismissal which equates to €765. Dated: 13/12/17 Workplace Relations Commission Adjudication Officer: Caroline McEnery Key Words: