FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : POTTLE PIG FARM (REPRESENTED BY ANNE HICKEY SOLICITORS) - AND - VALERY PANASOV (REPRESENTED BY JOHN P PRIOR & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision No.ADJ-00002248
BACKGROUND:
2. The Claimant and the Employer appealed the Decision of the Adjudicator to the Labour Court in accordance with the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 20th June, 2017. The following is the Determination of the Court:
DETERMINATION:
This is a joint appeal by Mr Valery Panasov and Pottle Pig Farm against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim made by Mr Panasov against his former employer that he was unfairly dismissed. By decision dated 5th January 2017 and bearing reference no ADJ-00002248, CA-00002849-001, the Adjudication Officer heldon the balance of probabilities that the dismissal was procedurally flawed and therefore unfair. Accordingly he upheld theComplainant’s claim of unfairdismissal andawarded the sum of €10,000 compensation.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Valery Panasov will be referred to as “the Complainant” and Pottle Pig Farm will be referred to as “the Respondent”.
The Court notes that appeals by the Complainant of Adjudication Officer decisions under the Minimum Notice and Terms of Employment Act, 1973 and under the Organisation of Working Time Act, 1997 were formally withdrawn at the hearing, as the Respondent accepted liability under both those Acts..
Background
The Complainant commenced employment with the Respondent on 17th September 2009 as a Pig Stockman at the Respondents Pig Farm in Pottle, Ballyjamesduff, Co. Cavan. His duties involved the care, feeding, and general management of pigs (including piglets and juveniles) in the Respondent's pig breeding/rearing enterprise. His salary was €473.92 per week. His employment was terminated on the 20th November, 2015.
Summary of theRespondent’s Position
Mr Brian Sugrue B.L., instructed by Anne Hickey Solicitors, on behalf of the Respondent, refuted the allegation of unfair dismissal and held that the Complainant was dismissed on grounds of serious gross misconduct due to a neglect of duty giving rise to serious animal welfare and fire safety issues. His letter of dismissal dated 20th November 2015 stated that these issues were of such a serious nature that it was not possible for the Respondent to continue employing the Complainant.
Mr Sugrue submitted that the Complainant's dismissal followed a number of instances of failing to perform his duties adequately, general neglect of the pigs in his care, one instance of abusive language to his employer, one instance of refusing to carry out a legitimate instruction, and one instance of deliberate neglect which the Complainant admitted when challenged. While he is aware that these matters are disputed by the Complainant, Mr Sugrue contended that these disciplinary issues resulted in four verbal warnings and two written warnings being placed on the Complainant's personnel file between 20th January 2014 and 17th April 2015. He said that the last warning was issued on 17th April 2015 and stated that a re-occurrence of the Complainant's behaviour would result in immediate suspension and ongoing neglect of duty would result in dismissal.
Mr Sugrue said that the Respondent endeavours to run an ethical and humane pig rearing business, where animal welfare is paramount. The Complainant's repeated infractions rendered it impossible for the Respondent to continue employing him as a stockperson with livestock under his care. The incident which resulted in a summary dismissal was an inspection on 19th November 2015 which showed empty feeding bins, resulting in hungry and distressed pigs. The Complainant had also left lights on overnight, causing a fire hazard with serious animal welfare implications. This constituted serious gross misconduct, sufficient to warrant the Complainant's immediate dismissal, and was necessary to protect animal welfare and the economic interests of the Respondent and its other employees. The Complainant's contract of employment, and the disciplinary procedures allows for summary dismissal where a serious instance of gross misconduct has occurred. The Complainant was duly summarily dismissed as a result of his neglect of duties on 18th November 2015.
Mr Sugrue said that the Complainant did not invoke the appeals process in relation to his dismissal or in relation to any of the previous verbal and written warnings.Likewise, the Complainant did not submit any grievance in relation to his reduction to a 3 day week.
While Mr Sugrue accepted that there may have been procedural defects in the dismissal procedures, however, he contended that in light of the Complainant's serious misconduct on 18th November 2015, and his previous history, the Respondent was entitled to summarily dismiss him in accordance with the procedures contained in his employment contract. Therefore, he contended that the dismissal was not procedurally flawed in any respect.
In the alternative, even if the dismissal is taken to beprocedurallyunfair, Mr Sugrue submitted that, in all of the circumstances, it was neverthelesssubstantivelyfair. He cited Mary Redmond 'Dismissal Law in Ireland'. In dealing with 'Procedural v Substantive justice' she notes that:"Procedural defects will not make a dismissal automatically unfair. The legitimacy of the processes adopted by an employer may be subordinated to the substantive merits of a particular case. An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee. "
He submitted, therefore, that in light of the risks posed by the Complainant's conduct to animal welfare, health and safety, and the economic interests of the Respondent and its other employees, the Respondent acted reasonably in dismissing him. In any event, the Complainant contributed entirely to his own dismissal.
Summary of the Complainant’s Case
Ms Bébhinn Murphy, B.L., instructed by John Prior & Co. Solicitors, on behalf of the Complainant contended that theComplainant’s dismissal was unfair, as the alleged act of neglect of duty, amounting to gross misconduct, took place on a day when the Complainant was not at work. Even if the alleged act of gross misconduct was true, which is denied, fair procedures were not followed, no inquiry took place and no oral/verbal warning was furnished. The Complainant sought to appeal the decision to dismiss, despite not being afforded the right to appeal, which was ignored by the Respondent, until he became aware that the Complainant had instructed a Solicitor.
Ms Murphy told the Court that on 28th October 2015, the Complainant requested three months' pay slips from the Respondent as he had not received any and he wished to apply for a car loan. His local Credit Union needed proof of earnings by way of 3 months' payslips. The Complainant requested these pay slips everyday over a two week period. The previous year the Complainant had requested pay slips to support a mortgage application and it took one month for the Respondent to provide them.
He denied having received any verbal or written warnings other than one verbal warning in 2009.
The Complainant said that the Respondent was annoyed at being asked for pay slips and on 11thNovember 2015, the Respondent asked him to clean the canteen. The Complainant responded that he wanted his pay slips first and once he got them, he would clean the canteen. The Respondent told the Complainant that he would not supply him with the requested pay slips and he proceeded to place the Complainant on a three day working week, effective from Monday 16th November 2016. Ms Murphy contended that this action by the Respondent was presumably by way of a punishment.
Just prior to his dismissal, SIPTU on behalf of the Complainant had written to the Respondent, on 17th November 2015, appealing the decision to reduce the Complainant from a three day working week, back to a five day, full working week and sought reimbursement for loss of earnings.
The Complainant was certified ill from 16th to 19th November, 2015. He did not attend for work on 16th November 2015, however he did attend on 17th and 18th November 2015. On 18th November 2015 he worked a different shift than his normal shift, on that day his shift commenced at 6.30 am and finished at 3.30 pm. As he was not well on Thursday 19th November 2015 he did not work that day.
On 19th November 2015, the Complainant telephoned the Respondent to ascertain when he would be placed back on a full working week, this call followed a letter sent from SIPTU making similar enquires. During that telephone call the Respondent informed him that he was fired. Despite attempts to do so the Respondent failed to engage with his Union about the dismissal.
Ms Murphy referred to the Respondent’s letter dated 20thNovember 2015 setting out the reason for his dismissal. This letter stated that the dismissal was due to neglect of duty on 19th November 2015, allegations which the Complainant denied, as he was not working on the day in question the alleged acts took place. He was not afforded a right to appeal. However, SIPTU wrote to the Respondent appealing the decision to dismiss and seeking a date and time for an appeal hearing. The Respondent did not reply.
Ms Murphy contended that there were no grounds for the Complainant’s dismissal and in any event as no enquiry took place and no appeal was allowed, the dismissal was therefore procedurally flawed and unfair.
Ms Murphy said that the Complainant’s appeal of the Adjudication Officer’s Decision was on the basis of the quantum of compensation awarded.
Witness Testimony
- Mr Thomas Brady, founder, owner and partner in the firm.
Mr Brady explained that the Complainant was responsible for taking care of the weaner section, (piglets being weaned from the sows). They are fed milk based products and it was critical to feed them regularly.
He said that on the morning of Thursday 19th November 2015, the Complainant sent a text message to say that he would be not coming into work as he was suffering from conjunctivitis, for which he has a medical certificate. This text came into his brother Brian’s phone at 8.01am and Brian informed him. The Complainant’s normal shift that day was from 8.00am to 5.00pm.
Mr Brady told the Court that he then proceeded to carry out the Complainant’s tasks and on entering the weaner area, he discovered the lights had been left on and the piglets had not been fed. He said that these piglets must be manually fed, by filling the hoppers with feed. (Older piglets are fed by automated means). He said that it was obvious from their distressed state that they had not been fed for at least 20 hours. He said the feeding hoppers were empty. He said that these were newly weaned pigs and it was critical for their wellbeing that they should not be allowed to go hungry. He said that there could have been serious repercussions had this been discovered during an inspection. He photographed the scene, proceeded to feed them and then photographed the piglets who at this stage were scrambling all over the hopper for their food, which he said was not the norm. He then proceeded to the office to show the photographs to Brian. They discussed the matter and made the decision that it was no longer possible to employ the Complainant and having reviewed their disciplinary procedures, they jointly made the decision to dismiss him for serious gross misconduct, with immediate effect.
Mr Brady told the Court that the piglets had deliberately been left without food. This was an act of neglect of duty by the Complainant and was totally abhorrent to him and Brian, as pig farmers.
In cross examination he was asked if he had put this accusation to the Complainant before making the decision to dismiss him and he said that ‘no’ he had not. He said that he was not aware of any excuses/reasons why the Complainant did this but he had his suspicions. Mr Brady said that no one else could have been responsible for what happened. He said that with his vast experience dealing with pigs he knew instantly that they had not been fed in at least 20 hours. He said that had they been feed there would still be some food left in the hoppers. He said that by the “hungriness” of the piglets he knew they had been left without food for at least 20 hours. He said that while he would not be in this area of the farm on a daily basis, he would be there sufficiently often to know the routine. He said that leaving the lights on from the previous evening could be a potential fire hazard.
When questioned about an investigation prior to dismissal, he said that his observation of the matter coupled with his vast experience was sufficient. There was no requirement for any further investigation, no requirement for any questioning of the Complainant and therefore the decision was instantly taken to dismiss him.
Mr Brady said that the previous day, Wednesday 18th November 2015 was a selling day, when pigs are sent to the factory. On such days the Complainant (and other employees) comes in early and works a 6.30am to 3.30pm shift.
When questioned about the written correspondence from SIPTU made on behalf of the Complainant, Mr Brady said that he was aware of the letters and was aware that SIPTU were seeking an appeal. However, he told the Court that as the matter was so serious he had no intention of changing his mind on the dismissal. He said that we could not have him working on the farm“when he could treat animals like that”. He said that the Complainant knew well what he was doing, he did not feed the piglets the day before as he was obliged to do, he then did not turn up the following day, so that his deed would be discovered.
- Mr Brian Brady, Partner, Manager with responsibility for administrative matters.
Mr Brady told the Court that between 8am and 9am that morning that his brother rang and asked him to come to the weaner houses. When he got there his brother Tommy pointed out the empty feeders and said that the Complainant had not fed the piglets the day before. He showed him photos on his phone of the empty feeders and the piglets scrambling for food when fed by Tommy.
Mr Brady explained that the previous day, 18th November 2015, as it was a ‘selling day’, the Complainant started work at 6.30am and when the pigs were loaded, they all went for a tea break. Following which, as normal, the Complainant and other employees went about their duties, including feeding the pigs. He said that the Complainant should have filled the hoppers to ensure that the piglets had enough feed to last them until they feeding time the following day. This should have been done between 8am and 10.30am on Wednesday 18th November 2015.
Mr Brady said the hoppers hold 40 kilos of feed, there are 40 piglets per pen with one hopper per pen. A newly weaned pig will consume on average 500 grams of feed per day, therefore there should have been feed left over. However, he said that the Complainant deliberately did not feed the piglets.
Mr Brady told the Court “he was not fit for purpose, his luck had run out, it was me or him”. He said the incident on the 19th November 2015 was pure neglect. He said“it was orchestrated, deliberate”.Mr Brady said that he discussed the situation with Tommy and they decided to ask their accountant for advice on what action to take. He said that the accountant told him that if in their view the Complainant’s actions were so serious as to constitute gross misconduct then he should be dismissed. He said that as both he and his brother were definite that the Complainant’s actions were deliberate they formed the opinion that it was gross misconduct therefore they would dismiss him with immediate effect.
When questioned as to why the Complainant was not given an opportunity to defend himself, Mr Brady said that “he hadn’t a leg to stand on, I made the decision, that was it”.
Mr Brady said that later that day, the Complainant telephoned him looking for his full time hours back, however he told him“you did not feed the pigs yesterday”, “it was all over” and “you are finished”.
Mr Brady accepted that the Complainant was not told he could appeal the decision. He said that he would“close down the operation rather than take him back”.He said that the following day, 20th November 2015, he wrote the dismissal letter, went to the Complainant’s address and handed it to him.
In cross examination, Mr Brady accepted that the Complainant was not questioned prior to the decision to dismiss; the dismissal letter did not refer to gross misconduct; it did not give the Complainant a right of appeal and when the Complainant telephoned him that day, he told him that he was dismissed as he had not fed the pigs the day before. Mr Brady accepted that he did not show the photos to the Complainant or seek any explanation from him.
Mr Brady accepted that other than his and his brother’s vast experience with pigs there was no evidence to prove what the Complainant was being accused of.
Mr Brady said that he received a letter from SIPTU dated 25 November 2015 seeking to appeal the decision to dismiss the Complainant, despite the dismissal letter not affording him that right. When he received the letter, it was agreed between him and his brother that they would contact their own solicitor, who turned out to be in Australia until January. Therefore they did nothing pending his return. When Mr Brady responded to SIPTU he was informed that the Complainant had referred the case to a solicitor.
On the return of his own solicitor from leave in early January 2016, he referred them to another solicitor in the firm who dealt with the matter thereafter.
- The Complainant’s evidence
He said that on 16th November 2015, as he was suffering from eye problems he went to his doctor and was diagnosed with conjunctivitis. He was given a certificate until 19th November 2015. However, as he needed the money he went to work on 17th and 18th November 2015. By 19th November 2015 his eye was so sore that he could not go into work on. Therefore he sent a text message to Mr Brian Brady on the morning of 19th November to say he would not be in as he was ill.
He told the court that he had commenced work at 6.30am on 18 November as it was a ‘selling’ day and the pigs had to be loaded early. He said that having loaded the pigs, he took a break and then proceeded to feed the pigs as normal. He said that he fed all pigs, including the weaners. He also fed them again at around 2.00pm and gave them sufficient feed to last them until the following morning. He said that he had no recollection of leaving the lights on.
The Complainant told the Court that later on the Thursday, 19thNovember he telephoned Mr Brain Brady to ask him when he would be returning to full time work. Mr Brady then told him that as he did not feed the piglets the day before, he was being fired. He disputed this contention with Mr Brady and told him that he had fed the pigs as normal. He received a dismissal letter in his post box on 21stNovember 2015.
In cross examination, the Complainant accepted that the pigs on the farm are treated very well, however, he said that in his fifteen years’ pig experience there was nothing unusual in piglets scrambling over one another to get to their food. He could give no reason when the feeders would be empty at the time that the Respondent says he saw the pigs. The only explanation he could surmise was that the photos were taken at a later time than suggested.
The Complainant outlined the effect the dismissal had on his economic wellbeing. He said that since his dismissal he had applied for numerous jobs (details supplied to the Court) and had undertaken two training courses to enhance his skills. He has survived on job seekers Social Protection benefits.
The Law
Section 6(1) of the Acts provides:-
- "Subject to the provisions ofthis section, the dismissal ofan employee shall be deemed, for the purposes ofthis Act, to be an unfair dismissal unless, having regard to all the circumstances there were substantial grounds justifying the dismissal. "
Findings and Conclusions of the Court
The fact of dismissal was not in dispute. Accordingly there is a statutory presumption that the dismissal was unfair unless there were substantial grounds justifying it.
Itis submittedthat while there may have been procedural flaws in the Respondent actions when it dismissed the Complainant,the dismissal was justified taking account of the previous warnings and the seriousness of the Complainant’s actions in not feeding the piglets and in leaving the lights on all night, thereby causing a potential safety risk.
The Complainant strongly denied having received warnings, other than a verbal warning in 2009. He disputed the authenticity of the warnings contained in the Respondent’s submission and stated that he had never seen them before.
In any event, the Respondent’s case was predicated on the dismissal being justified in accordance with its disciplinary procedures as it constituted serious gross misconduct warranting summary dismissal. The Court notes that the Respondent has in place comprehensive disciplinary procedures, which include a full investigation and possibly a suspension. They provide for immediate dismissal“where we discover you in the process of a serious act of dishonesty”. In the instant case there was no such discovery. The Respondent made an assumption which in all the circumstance of this case the Court cannot accept was an appropriate assumption to make in the absences of an interview/investigation with the Complainant at the very least. Mr Thomas Brady said that the piglets had not been fed in at least 20 hours. The Complainant told the Court that he fed the pigs twice on 18th November, once after 8.30am and the second time around 2.00pm. Mr Thomas Brady stated that he discovered the piglets without food at around 8.30am on the 19th November, that is a period of approximately 18 ½ hours since the Complainant stated that he fed them. In such circumstances, the Court considers it unreasonable that no explanation for the conclusions deduced by the Respondent was sought from the Complainant. Therefore the Court is satisfied that the disciplinary procedures were not adhered to by the Respondent.
Mr Sugrue argued that procedural flaws alone could not render a dismissal unfair as regard must be given to all the circumstances, particularly the substantive reason for dismissing the Complainant.
The Court therefore can only examine whether the Respondent’s belief of the Complainant’s guilt based on their vast experience of pig farming alone, was based on reasonable grounds.
Having examined the submissions made by both parties and the evidence given, the Court concludes that the manner in which the decision was made to dismiss the Complainant was devoid of any form of procedural fairness and offended against the principles of natural justice to which he was entitled. No investigation/enquiry was carried out. The Respondent came to a conclusion that the Complainant was guilty of a serious offence without giving him an opportunity to defend himself and/or to respond to the allegations made. He was not allowed any representation and was given no right to appeal.The Complainant was simply told over the phone that his employment was terminated. He was dismissed in a most insensitive manner.
InGearon v Dunnes Stores LimitedUD367/1988, the EAT held:-
- “The right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to the threat to her employment is a right of the claimant and is not the gift of the respondent or the Tribunal….As the rights is fundamental one under natural and constitutional justice; it is not open to this Tribunal to forgive its breach”.
The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.
In all the circumstances of this case, the Court is not satisfied that there were grounds for the Complainant’s dismissal.
Redress
The Court has given careful consideration to the circumstances in which the Complainant was dismissed having been employed by the Respondent for over six years. It is clear to the Court that the Complainant has attempted to mitigate his loss by applying for numerous jobs, to no avail and had undertaken training in HGV Driving and Artic Truck Driving in an effort to enhance his skill set. Despite these efforts the Complainant is at a considerable loss of income as a result of the Respondent’s actions.
The Court has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.
Having assessed all of the information before it the Court considers that the Complainant has suffered considerable financial loss as a result of the wrong he has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €30,000. The Court so Determines.
Determination
The Court determines that the Respondent’s appeal is rejected and the Complainant’s appeal is allowed.The Decision of the Adjudication Officer is varied. The Court awards the Complainant compensation in the amount of €30,000 to be paid within42 days of the date of thisDetermination.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th July 2017______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.