ADJ-00005681

ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00005681

Parties:

Complaint(s):

Date of Adjudication Hearings: 16/3/2017 and 03/07/2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 41 of the Workplace Relations Act 2015 , 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).

Background:

The Complainant alleged she was unfairly dismissed. The Complainant was employed as a Sales Assistant from December 6^th 2007 and was dismissed on June 2^nd 2016. The Complainant sought compensation for unfair dismissal and did not seek reengagement or reinstatement. The Complainant was not paid any notice.

Summary of Complainant’s Case:

The Complainant was genuinely sick on the day of the belly dancing class.

The Complainant was not given proper rights to representation at the Investigation and Disciplinary process.

The Complainant did not conduct the course in question and another person (who attended the Hearing) stated that she conducted the class.

The Complainant is a foreign national and did not have sufficient English to fully understand the issues involved.

The Complainant did not receive any pay from the Respondent for this time off.

The Respondent had their sights set on dismissing the compliant as she is paid higher than other staff.

The legal precedents quoted belong to another jurisdiction and it is the wording of the UD Act that takes precedent.

When a new manager was appointed things changed dramatically for the Complainant.

In the Compliant final year of her degree course she was subjected to stress and anxiety.

The Complainants previous hours were changed to cause her distress.

The Respondent accepts that the Complainant could recover in a few hours because they asked her to ring back again at 4pm after the 1pm call so they accept that her condition could change in that space of time.

The Complainant did not conduct the class in question and the Respondent has not provided the person to the Hearing to substantiate this assertion.

The person was mistaken in what the Complainant was wearing on the night in question.

The complainant has not always been paid sick pay when out sick in the past and therefore she had no expectation that she would be paid for the evening in question.

The Respondent has not discharged the burden of proof required to show this was a fair dismissal.

The gravity of the situation was not explained to the Complainant in advance and she was not afforded the opportunity for representation.

The minutes of meetings and not common minutes, they are the Respondents own version of events.

Summary of Respondent’s Case:

The Complainant ran belly dancing classes for two nights a week privately. The Respondent facilitated this by facilitating time off whenever possible or to swop shifts with another employee.

On May 17^th 2016 the Complainant was rostered to work from 5pm to 9pm and this roster had been prepared four weeks in advance. The Complainant contacted the Respondent at 1pm that day and advised her Manager she had a kidney infection and would not be able to work her shift. The Complainant was asked to ring back at 4pm to confirm she would or would not be able to work. The Complainant rang back at 4pm and advised she was still sick and was going to bed for the night.

That evening the Complainant was seen by a member of the Respondents management staff preparing for her belly dance class at a local Hotel at 8.20pm.

The following day the Complainant attended for work as scheduled and the Respondent held a back to work meeting. During the meeting the Complainant stated that she did stay in bed for the night and she now felt much better. She initially denied attending the belly dancing class but eventually admitted being at the class. She asserted she felt better at 7.30pm that night and that she attended, but did not conduct the class. The Complainant was informed it was not acceptable to ring in sick and then attend anther paid employment. The Complainant stated she had been planning on asking permission to leave early and the Respondent found this difficult to believe as the roster was rostered four week in advance and the Complainant had sometime previously asked to swap shifts and this had always been granted.

The Respondent commenced an investigation over two weeks or so into the matter and as part of that the Complainant stated she did not know she would be paid for the time missing. The Respondent stated that the Complainant informed the company that the Complainant had gone to bed on the night in question but set her alarm for 7.30pm and to see how she was feeling and was hoping she would be well enough to attend the class. A disciplinary meeting took place on 2 June 2016, following which the Complainant’s employment was summarily terminated in circumstances where the Respondent could not accept the Complainant’s assertion that she had been sick on the evening of 17 May 2016 or the Complainant’s explanation as to how she planned to work her shift, had she not been sick, and still make her dance class that same evening. The Respondent further could not accept the Complainant’s assertion that she did not know that the Respondent would pay her sick pay for the shift in question in circumstances where the Complainant had been paid sick pay for single, uncertified, sick days as recently as 28 August 2013. It was clear to the Respondent that the Complainant decided to call in sick, benefiting from a day's sick pay, whilst simultaneously conducting her own dance class, as scheduled. The Complainant was advised of her right of appeal however the Complainant did not appeal against her dismissal.

In these proceedings, the Complainant claims that she was unfairly dismissed by the Respondent. Section 6(1) of the Unfair Dismissals Act, 1977 provides that;

"(a) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal."

The Respondent denies the within claim and asserts that there were substantial grounds justifying the termination of the Complainant’s contract of employment. The Respondent further asserts that the dismissal was reasonable in all the circumstances.

The Respondent submits that the totality of the case apparently being made by the Complainant’s solicitor amounts to nothing more than an attempt to re-run the disciplinary process. The Respondent submits that it cannot seriously be suggested that the sanction of dismissal, in all of the circumstances, was outside of the “band of reasonable responses” to the Complainant’s conduct.

The Respondent notes that it is not the role of the Adjudication Officer to substitute his/her views for that of the employer but rather to establish whether or not the decision to dismiss within the “band of reasonable responses” available to an employer finding itself in the position of the Respondent.

The “band of reasonable responses” test was developed by the English Adjudicators in response to a tendency by Industrial Tribunals (now referred to as Employment Tribunals, which are the English equivalent of the Employment Appeals Tribunal/Labour Adjudicator – the English Employment Appeals Tribunal is chaired by a Queens Counsel or High Adjudicator Judge) to deal with cases on the basis that there was only one objectively fair and reasonable decision that could have been reached and that, if the decision taken by the employer did not agree with the decision that would have been taken by the Tribunal applying the "reasonable employer test", there was an unfair dismissal. In those circumstances the Industrial Tribunal tended to substitute their view for that of the employer.

The flaws in this approach were confirmed by the Adjudicator of Appeal in Foley v Post Office [2000] ICR 1283. As stated by Mummery L.J. (at p. 1295):

“This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer's decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response."

This principle was elaborated upon by the same Judge in the decision of the Adjudicator of Appeal in Anglian Home Improvements Limited v Kelly [2005] ICR 242:

“The first criticism is that the employment tribunal did not correctly direct itself in law to the appropriate range of reasonable responses test. The test has been well established since the early days of unfair dismissal claims. It is still impossible to improve on the passage from the judgement of Lord Denning MR in British Leyland UK Ltd v Swift [1981] IRLR 91, 93 para 11 cited by Mr. Laddie. The test laid down there was:

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him." Years later, the same test was confirmed by this Adjudicator in Foley v Post Office [2000] ICR 1283.”

Foley v Post Office was cited with approval by McGovern J. of the Irish High Adjudicator in the context of a wrongful dismissal claim in Doyle v Asilo Commercial Limited [2008] IEHC 445:

“It is not the function of the Adjudicators to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mummery LJ stated in Foley v The Post Office [2000] ICR 1283 at page 1295.

The employer, not the Tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response."

The reason for the dismissal in Foley v Post Office was “absence from duty”:

“The Post Office established to the satisfaction of the employment tribunal that the reason for the dismissal of Mr. Foley related to his conduct within the meaning of section 98(2)(b) of the Act of 1996, i.e. unauthorised absence from duty for part of a duty on 16 May 1997. That was the reason for dismissal in the accepted sense that it was a set of facts known to the Post Office, or a set of beliefs held by it, which caused it to dismiss Mr. Foley: W. Devis & Sons Ltd. v Atkins [1977] ICR 662, 678a.”

The Adjudicator of Appeal found that having regard to the above finding, the Employment Appeals Tribunal did not have jurisdiction to substitute its view of the appropriate sanction for that of the employer. The basis for and the application of the “band of reasonable responses” test is well illustrated by the decision of Browne-Wilkinson J. in Iceland Frozen Foods v Jones [1983] 1 ICR 17: “Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Act of 1978 is as follows: (1) the starting point should always be the words of section 57(3) themselves; (2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair; (3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstance of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.

Reverting now to the facts of this case, it is suggested that notwithstanding the misdirection, we can uphold the decision of the industrial tribunal on the ground that on any footing it was manifestly unreasonable for the employers to dismiss in the circumstances of this case. The industrial tribunal obviously regarded the employee's faults as minor ones. We cannot accede to the view that notwithstanding the misdirection we can substitute our own decision in this case. Take, for example, the failure to lock the office and to set the alarm. The industrial tribunal took the view that the offence was comparatively trivial; it does not necessarily follow that all reasonable employers would share their view on the matter. It may well be that the misdirection on this point is fundamental to the decision of the case. We do not know enough of the circumstances of the employer's business to decide whether the importance which they obviously attached to the breach of security was such that a reasonable employer might take the view that the risk which security was too great to allow the risk to continue. We express no view to the point one way of the other. We simply cannot decide the matter ourselves on the material we have before us.

As to the alternative ground relied on by the industrial tribunal, namely, procedural unfairness, as we have said we do not think it the correct approach to deal separately with the reasonableness of the substantive decision to dismiss, and the reasonableness of the procedure adopted. The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances.”

The decision of the Adjudicator of Appeal in J Sainsbury plc v Hitt [2003] 1 ICR 111 is an example of the application of the test in the context of a retail environment. Mummery LJ gave the decision of the Adjudicator as follows: “The position is that the employment tribunal’s decision was legally flawed by the application of the wrong test. If one looks at the findings of fact, the position is as stated by the chairman in his dissenting conclusions. The investigation carried out by Sainsburys was not for the purposes of determining, as one would in a Adjudicator of law, whether Mr. Hitt was guilty or not guilty of the theft of the razor blades. The purpose of the investigation was to establish whether there were reasonable grounds for the belief that they had formed, from the circumstances in which the razor blades were found in his locker, that there had been misconduct on his part, to which a reasonable response was a decision to dismiss him. The uncontested facts were that the missing razor blades were found in Mr. Hitt's locker and that he had had the opportunity to steal them in the periods of his absence from the bakery during the time they went missing. Investigations were then made, both prior to and during the period of an adjournment of the disciplinary proceedings, into the question whether, as Mr. Hitt alleged, someone else had planted the missing razor blades in his locker. In my judgment, Sainsburys were reasonably entitled to conclude, on the basis of such an investigation, that Mr. Hitt's explanation was improbable. The objective standard of the reasonable employer did not require them to carry out yet further investigations of the kind which the majority in the employment tribunal in their view considered ought to have been carried out. In suggesting further investigations of the kind set out in paragraph 6 of the extended reasons, the majority of the employment tribunal were, in my judgment, substituting their own standards of what was an adequate investigation for the standard that could be objectively expected of a reasonable employer. On the decision of this Adjudicator in Foley v Post Office and HSBC Bank plc (formerly Midland Bank plc) v Madden [2000] ICR 1283, that is not the correct approach to the question of reasonableness of an investigation.”

In the circumstances set out above, it is submitted that the decision to dismiss fell within the “band of reasonable responses” available to an employer finding itself in the position of the Respondent.

Decision:

Section 8 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.

The only things the parties agreed as common ground in this case were that the Complainant was due to be at work between 5pm and 9pm on May 17^th 2016, that she phoned in sick at both 1pm and 4pm that day and that she was in attendance at the belly dancing class that evening while she was due to be at work. All other issues are contested between the parties.

The Complainants main case was that she recovered at around 7.30pm that evening enough to show up at the Hotel for the class, that she did not conduct the class, that she did not gain financially from running the classes, that the Respondent was out to “get her” because she was on higher pay than other staff, that she did not understand the gravity of the situation when attending meetings to do with the investigation and disciplinary process, that she was denied the right of representation, that because she was a Foreign National she did not understand the implications of what she was being asked, that by the Respondent asking the Complainant to ring back at 4pm they accepted that she could recover between 1pm and 4pm on the day in question and therefore it was reasonable to assume the Complainant could also recover between 4pm and 7.30pm and that the company did not have substantial grounds under the Act to dismiss her and that the precedents in other jurisdictions relating to “reasonableness to dismiss” are secondary to the actual wording of the Act itself relating to has an employer “substantial grounds” to dismiss.

The Respondents main case was that any reasonable employer would dismiss in the circumstances where it found an employee who was due to be at work, had called in sick and was then found to be elsewhere conducting a class for profit. The Respondent denied not giving the Complainant the right of representation, that it did give fair procedure, that the Complainant did not take up her opportunity for internal appeal, that the Complainant had lied regarding attending the class and changed her story to suit her.

The Law

Section 6 of the Act in relevant part states:-

This approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Donaldson LJ in Union of Construction Allied Trades and Technicians v Brane[1981] IRLR 224(Adjudicator of Appeal for England and Wales) in the following terms:

“It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”

In Derryquin Hotels Ltd v Savage[1981] IRLR 91,Lord Denning MR stated the position thus: -

“It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even if other employers may have dismissed him”

The Complainants Representative argued that precedents from other jurisdictions should not be more persuasive than the wording of the Act itself but In this jurisdiction, in Bunyan v United Dominions Trust[1982] ILRM 404, The EAT adopted and applied the following principle enunciated by the UK EAT in NC Watling Co Ltd v Richardson[1978] IRLR 225:-

“The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

The Adjudicator was presented with a direct conflict of evidence as regards the events of May 17^th 2016. The Respondent contends that the Complainant was not ill and was conducting a pre planned belly dancing class for personal financial gain when she should have been at work with the Respondent. The Complainant maintained that she felt better at 7.30pm that night and did not conduct the class but only sat in on the class and did not receive any financial gain from the class.

The Adjudicator has carefully considered the submissions and evidence of the parties. In essence the Respondent could not provide the witness that said she saw the Complainant conducting the class as the witness was no longer an employee. The Respondent stated that as the witness was no longer an employee they could not insist on her attendance at the Hearings without a summons. The Adjudicator has no legal power to summon that witness so her evidence is affected as a result. The Complainants side did provide a class member who stated that she ran the class in question on the night of May 17^th 2016 and not the Complainant.

In assessing this situation I have decided not to give the issue of whether the Complainant conducted the class or not as the key issue as this cannot be resolved by the evidence presented.  It is more relevant to assess that the Complainant was present at the class when she was expected to be at work and for which she would have been paid unless she had notified the Respondent the following day in the “return to work meeting”. She did not do so of her own accord, denied being at the class initially and then agreed she was. This goes to the core of the credibility of the Complainants trustworthiness in the view of the Respondent. It is also not reasonable to suggest the Complainant, being a foreign national, did not have the wherewithal to understand the situation and gravity of it as the Complainant in her own evidence has completed a degree course in Ireland and seemed perfectly able to communicate in English.

In the circumstances of whether the Complainant operates belly dancing for financial gain, the Complainants web sites and information regarding the belly dancing services supplied by the Complainant would lead to the conclusion, on the balance of probability, that she does operate this act for financial gain. Indeed in one case, the Complainant offered classes for 40 Euros per person for a 2 hour class in Dublin and payment had to be made in advance of the class.

Having made these findings it is for the Adjudicator to determine whether the conduct of the employer in terms of the Investigation and Disciplinary procedure undertaken were fair. Ultimately the Adjudicator 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.

There really was no evidence to support the claim that the Respondent was out to “get” the Complainant. There was evidence to show they had facilitated her education and classes previously and the Complaint was not the subject of any disciplinary action that she had appealed or had been overturned.

An investigation took place which resulted in an outcome which was shared with the Complainant. While one would prefer a written report arising from the Investigation that is not to say that the Investigation itself was flawed . The Adjudicator is satisfied from the evidence that the investigation process was conducted with due regard to fair procedure and that the Complainant was afforded natural justice throughout.

A disciplinary process ensued and the Complainant decided not to be represented therein. The Adjudicator is satisfied that the Complainant had every opportunity to be represented and to make any submissions she chose to the person carrying out the disciplinary process. At no stage did the Complainant seek representation or bring a work colleague to assist her. At no stage in this process did the Complainant seek to have any disciplinary action reduced to a lesser disciplinary action than dismissal.

Following the completion of this process a decision issued which identified the events as a serious breach of the Company Code of Conduct and identifying the appropriate sanction as dismissal. This decision was issued to the Complainant by post dated June 2^nd 2016. The Complainant was advised of the procedure for appeal. The Complainant chose not to appeal but stated she did not appeal because she did not get the termination letter. The Respondent provided an An Post signed Bar Coded Item delivery record which they say shows the Complainants actual signature accepting the letter. While not a handwriting expert I do prefer the Respondents version of events in this situation to the Complainants.

The Adjudicator is satisfied that the procedure which was clearly advised to the Complainant was conducted in a structured way with opportunities being afforded to the Complainant to be represented throughout. The Adjudicator is satisfied that the Complainant was given every opportunity to state her case and to hear any accusation against her. The disciplinary process concluded that the Complainant had abused the systems in place in the company and that the trust and confidence necessary to sustain the employment relationship had been eroded. The Respondent, through the disciplinary process, concluded that the Complainant was guilty of gross misconduct in that she had deliberately manipulated company policy and was going to misuse the company sick pay scheme. The Respondent determined that dismissal was the appropriate and proportionate response to the findings of the disciplinary process

The role of the Adjudicator is to determine whether the decision to dismiss had substantial grounds for dismissal in the circumstances and was the sanction within the range of what a reasonable employer would have done. Even if one accepts that the Complainant could have recovered from her illness and did not participate or financially gain from the class on the night of May 17^th 2016 this does not give a reason why she did not own up to this immediately in the return to work meeting. It is her differing account in that meeting of the prior evening where she stated she did not go to the class that is the key issue here. This goes to the heart of the Complainants credibility of her defense.

The Adjudicator, in all of the circumstances of this case, concludes that the Respondent had substantial grounds for dismissal as the Complainant had misled the Respondent with regard to her whereabouts when she should have been at work, that the “bond of trust” has been eliminated and the decision to dismiss was therefore within the range of “reasonable response” from an Employer.

Therefore, the Adjudicator finds that the Complainant was not unfairly dismissed and both claims presented fail as a result as the Minimum Notice claim does not apply as the Complainant was dismissed in line with the Company Handbook Section entitled “Summary Dismissal”.

Dated:   7^th July 2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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