UDD171

This is an appeal by Joseph Curran (the Appellant) against the decision of an Adjudication Officer in his claim that he had been unfairly dismissed by his former employer Clogrennane Lime Limited.

In a decision dated 8^thApril 2016 the Adjudication Officer found that the Respondent’s decision to dismiss the Appellant was fair and the Appellant’s complaint was not upheld.

The Appellant was employed from 27^thMay 2013 until his dismissal on 28^thJune 2015. The fact of dismissal is not in dispute.

Summary of the Position of the Respondent

The Respondent contends that on 29^thMay 2015 Mr AR, the Operations manager for the Respondent, arrived at the Respondent’s facility at approximately 5.20am in order to prepare for a meeting later in the morning. The Respondent submitted that Mr AR found the Control Room locked and bin liners positioned so as to obscure the windows of the room. The Appellant’s place of work was the Control Room. The Respondent states that Mr AR rang Mr Curran’s mobile phone on two occasions but received no reply. Shortly thereafter the Appellant emerged from the darkened Control Room (no lights were turned on).

A meeting was convened between the Appellant, Mr AR and Mr BK (the location manager) at 8.00am that morning which was the time of conclusion of the Appellant’s shift at which point the Appellant was suspended with pay pending an investigation. Mr AR and Mr BK submitted in evidence to the Court that the Appellant confirmed at that meeting that he was asleep on the night of 29^thMay 2015 and had been asleep on other occasions previously.

The Respondent submitted to the Court a report from a Mr JA (a driver) purporting to describe events on another date when the Appellant was asleep.

The Appellant was written to by Mr DR (Finance director of the Respondent) on 2^ndJune 2015 inviting him to attend an investigation meeting and pointing out that the outcome of the meeting could result in disciplinary action being taken against him. The letter included copies of the Company policies as regards performance management, disciplinary and grievance procedures. The letter also advised the Appellant that he had the right to be appropriately represented at the meeting and recommended that the Appellant make the necessary arrangements in that regard.

The meeting was convened on 11^thJune 2015 and was attended by Mr DR and Mr JC for the respondent together with the Appellant and his representative, Ms M O’C.

An investigation team report was completed following this meeting and a copy of that report was furnished to the Appellant by e-mail dated 19^thJune 2015. That e-mail invited the Appellant to a disciplinary meeting to be held on 23^rdJune. That meeting took place as planned on 23^rdJune and the Respondent was represented by Mr BW (Managing Director) and Mr BR (Sales Manager). The Appellant chose not to be represented on this occasion.

Following this meeting the Respondent wrote to the Appellant on 25^thJune informing him that the Respondent had decided that the incident was deemed to be gross misconduct warranting summary dismissal with effect from 26^thJune 2015. That letter also advised the Appellant of his right to appeal and of the means to do so and the timeframe within which an appeal should be made. The letter advised the Appellant that the appeal would be conducted in accordance with procedures which were attached to the letter.

The Appellant appealed the disciplinary decision and an appeal hearing was convened by Mr TH on 21^stAugust 2015. The Appellant was offered representation but chose not to be represented at this hearing. The decision to dismiss was confirmed following this appeal hearing by letter dated 7^thSeptember.

The Respondent contended that the Appellant had been asleep on the night of 29^thMay and had, by his own admission made on 29^thMay 2015, been asleep on other occasions also. The Respondent stated that it had a regulatory requirement to have the Control Room manned twenty four hours per day. The Respondent contended that the Appellant, by being asleep, placed the Respondent’s facility in jeopardy.

The Respondent contended that the Appellant was afforded his rights and entitlements under due process and natural justice.

The Respondent contended that the nature of the conduct and its admitted repeated nature was such as to leave the Respondent with no option but to terminate the employment relationship.

Summary of the Position of the Appellant

The Appellant contends that he was innocent of any wrongdoing, that he attempted to raise grievances which the Respondent refused to address in respect of matters which ultimately contributed to the Respondent’s decision to dismiss, that the Respondent failed to follow its own disciplinary procedures, that the procedures which were followed were unfair and / or inadequate, that the Appellant was dismissed without any / adequate substantive grounds to justify the dismissal, that the Appellant was not afforded any / adequate fair procedures in the course of his dismissal, that he was summarily dismissed by the Respondent, that the sanction was disproportionate, that there was no consideration of a lesser sanction and that the appeal procedure was unfair and / or inadequate.

The Appellant contended that the procedures of the Respondent outlined various stages of disciplinary action. The Appellant acknowledged that the procedures provide for summary dismissal in the event of gross misconduct. The Appellant however contended that the examples given in the procedures of gross misconduct were all far more extreme and contain an element of dishonesty, maliciousness and purposeful wrongdoing that is not apparent in an allegation of sleeping while at work.

The Appellant stated that he had suffered an injury to his eye while at work in January 2014. He contended that the lighting in the control room where he was stationed on the premises, and in particular the yard lights and natural light located outside the control room window, caused him severe difficulty. He stated that he repeatedly attempted informally to raise a grievance in these regards but that the Respondent had repeatedly dismissed his complaints. The Appellant contended that the Respondent’s failure to address his grievance caused him to adjust the lighting in the control room himself via blacking out the windows and adjusting the lighting in the room.

The Appellant contended that on the night of 29^thMay 2015 he had blackened the windows of the control room and adjusted the light. In addition he had locked the door of the control room ‘for security reasons’. He stated that normal procedure when hauliers arrived at the gate was for the control room operator (the Appellant) to reject their phone call and open the gate. He stated that it was in operation of this procedure that the Appellant rejected calls from Mr AR at 5.23am and 5.24am and opened the gate.

The Appellant stated that Mr AR, when he did gain entrance to the control room and observed that the room was darkened, became aggressive. The Appellant states that Mr AR accused him of being asleep and that he denied that. Ultimately however, upon being accused for the third time, the Appellant, due to his exhaustion at having completed a number of night shifts over the preceding days, frustration with being falsely accused, Mr AR’s aggressive manner and in the belief that only by answering in the affirmative would Mr AR stop, stated that he had been sleeping.

The Appellant stated that he was called to a meeting at the conclusion of his shift at 8.00am with Mr BK and Mr AR. He stated that, exhausted, frustrated and intimidated by Mr AR’s manner, he admitted that he had been asleep on the 29^thMay and that this was not the first time he had slept while at work.

The Appellant contended to the Court that he had not in fact been sleeping.

The Appellant contended that the investigation report contained factual inconsistencies and conflict and that the Disciplinary procedure was not operated in a fair manner and that the nature of the findings in the initial disciplinary hearing were inadequate to the degree that the Appellant was confined in his capacity to appeal.

Discussion and Conclusions

The Court is presented with a direct conflict of evidence as regards the events of 29^thMay 2015. The Respondent contends that the Appellant was asleep and that a meeting took place at the end of the Appellant’s shift which was conducted in a calm manner. The Appellant maintained in evidence that he was not asleep and that his first encounter with Mr AR and the subsequent meeting which took place at the end of his shift were aggressively conducted by Mr AR and were intimidatory to the degree that he made admissions as regards sleeping on that night and on previous occasions.

The Court has carefully considered the submissions and evidence of the parties. The Court notes the contention of the Appellant as regards an eye injury sustained in 2014 but notes that no medical intervention appears to have occurred following the initial injury. The Court notes the evidence of the Appellant that the eye injury interfered with his daily life for approximately a month after the injury was sustained. The Court also notes the Appellant’s evidence that thereafter the injury did not impact on his daily life. The Court also notes that no medical advice or information was ever submitted to the Respondent following the initial period surrounding the occurrence of the injury. The Court prefers the evidence of Mr AR as regards the initial encounter with the Appellant on 29^thMay 2015. The Court also prefers the evidence of Mr AR and Mr BK as regards the meeting convened following the completion of the Appellant’s shift on 29^thMay.

In those circumstances the Court concludes, on the balance of probability, that the Appellant was asleep while at work on the 29^thMay 2015 and acknowledged that fact to Mr AR at the initial encounter. The Court also finds, on the balance of probability, that the Appellant, at a meeting with Mr AR and Mr BK, voluntarily conceded without duress that he had been asleep previously while at work.

Having made these findings it is for the Court to determine whether the conduct of the employer in terms of the Investigation and Disciplinary procedure undertaken were fair. Ultimately the Court must consider whether the actions taken by the employer were within the range of reasonableness and whether the sanction of dismissal was proportionate to the events.

The Court notes that a meeting took place at the end of the Appellant’s shift and that this meeting resulted in a decision to initiate an investigation. The Court is satisfied that the initial meeting at shift end on 29^thMay was in the nature of a preliminary discussion arising from events which occurred on the shift just ended and that it was not unreasonable for the Respondent to initiate an investigatory process subsequently. The Court is satisfied that this meeting played no part in the subsequent investigation process or in the disciplinary process undertaken

An investigation took place which resulted in an outcome which was shared with the Appellant. The Appellant was represented during the investigation meeting which he attended. The Court is satisfied from the evidence that the investigation process was conducted with due regard to fair procedure and that the Appellant was afforded natural justice throughout.

A disciplinary process ensued and the Appellant decided not to be represented therein. The Court is satisfied that the appellant had every opportunity to be represented and to make any submissions he chose to the person carrying out the disciplinary process.

Following the completion of this process a decision issued which identified the events as gross misconduct and identifying the appropriate sanction as dismissal. This decision was issued to the Appellant. The Appellant was advised of the procedure for appeal and again advised that he could be represented during this process. The Appellant chose to appeal but did not decide to be represented.

A disciplinary appeal hearing took place on 21^stAugust. The Court is satisfied, on the basis of the evidence presented, that the Appeal process was conducted in a fair manner and with due regard for the Appellant’s right to natural justice. Ultimately the disciplinary decision was upheld on appeal and the Appellant was dismissed.

The Court is satisfied that the procedure which was clearly advised to the Appellant was conducted in a structured way with opportunities being afforded to the Appellant to be represented throughout. The Court is satisfied that the Appellant was given every opportunity to state his case and to hear any accusation against him.

The Court notes that the role of the Appellant was central to the operation of the facility and that the Respondent was obliged by licence to ensure that the control room was attended twenty four hours per day. The Respondent determined that the Appellant was asleep on the night of 29^thMay 2015 and was advised by the Appellant that day that this had occurred previously.

The role of the Court is to determine whether the decision to dismiss in the circumstances was within the range of what a reasonable employer would have done. The Court, in all of the circumstances of this case, concludes that the decision to dismiss was within that range.

The Court finds that the Appellant was not unfairly dismissed.

Determination

The Court determines that the Appellant was not unfairly dismissed and the Appeal fails.

The decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
11th January 2017______________________
JKChairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.