Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00008466-001

10/11/2016

The Complainant commenced full-time employment with the Respondent   in the role of Janitor/Maintenance Person on 8 June 2004. The Complainant's contract   of employment provided that his normal hours of work were from 9 am to 5:30   pm daily, which amount to a 39 hour week. However the Complainant availed of   a provision in his contract which allowed him to finish early on Friday and   work a 37 hour week. The Complainant had a contractual entitlement to 26 days   annual leave per annum at the date of his dismissal.

The Respondent was aware that the Complainant was involved in   refereeing GAA matches. The Respondent agreed with the Complainant that,   where possible, it would try to facilitate his refereeing games during   working hours on condition that he would request and obtain management   approval at least two days in advance. The facilitation of such requests was   subject to business and operational needs.

On the morning of 25 May 2016 the Complainant formally made an   annual leave request for three hours leave on Friday, 27 May 2016 and for two   full days leave on 1 and 2 June 2016. These were made through the   Respondent's automated leave system.

The days leading up to the week commencing 30 May 2016 and the week   itself where the busiest time of the year for the Respondent's operation.

On receipt of the Complainant's annual leave request of 25 May 2016   the Respondents Operations Manager, to whom the Complainant reported,   immediately reviewed the request. The Operations Manager called the   Complainant at 9:20 am on 25 May to advise that, due to business and   operational requirements, it would not be possible to grant his request in   full. The Operations Manager advised the Complainant that she would have to   decline the request for three hours leave on 27 May and would review the   request for bold 1/2 June later that day.

Having further review the operational needs of the Respondent, the   Operations Manager held a meeting with the Complainant at 12:00 noon on 25   May during which they discussed the leave request. The Operations Manager   advised the Complainant that she would have to see how busy the week was to   see whether they could accommodate his request for 1/2 June.

On the morning of 30 May 2016, having reviewed the Respondent's   operational needs at that point in time, the Operations Manager contacted the   Complainant by phone and advised that she could approve the annual leave   request for 1 June. During this conversation the Complainant expressed his   dissatisfaction with the Operations Manager's decision and stated that he   wanted to take two days leave. He queried the Operations Manager as to who he   could appeal her decision to. The Operations Manager reiterated that she   could not facilitate two consecutive days leave at such a busy time of the   year. However, the Operations Manager informed the Complainant that if he was   still dissatisfied he could refer the matter to the General Manager.

The Complainant did not attend for work on 1 June as this had been   approved by the Operations Manager as a days leave. On 2 June 2016 the   Complainant telephoned the Operations Manager 8:26 AM and advised that he   would not be at work that day as he was unwell.

At approximately 11:15 am on 2 June 2016 the Respondent's Managing   Director witnessed the Complainant refereeing a football match at a nearby   sporting facility. As the Managing Director was aware that the Complainant   should have been at work that day, he reported the matter to the Operations   Manager.

The Complainant was invited to a disciplinary hearing on 10 June   2016. During the hearing the Complainant confirmed that he had called in sick   on the morning of 2 June but had refereed a football match later that   morning. The Complainant confirmed that he did not have a sick certificate to   cover his absence on that day but that he was sick and was suffering from   stress.

On 14 June 2016 the Operations Manager wrote to the Complainant and   advised him that, having reviewed the evidence, she found him guilty of   misconduct and dishonesty in relation to the events of the morning of 2 June   2016 and, as he was on an active final written warning, she had no option but   to terminate his employment with six weeks' pay in lieu of notice.

The Complainant exercised his right of appeal and an appeal meeting   was held on 23 June 2016. The appeal was heard by the respondent's CEO. The   outcome of the appeal process was that the Operations Manager's decision to   dismiss the Complainant was upheld.

The Complainant submitted that he was unfairly dismissed from his   position with the respondent due to a personality clash between him and the   Respondent's General Manager. The Complainant stated in evidence that given the difficulties in his working relationship with the General Manager he felt there was no point in appealing the Operations Manager's decision not to approve his leave request for 2   June.

The Complainant contended that, in his view, the final written warning which had been applied following a previous unrelated event was unfair.

The Complainant also submitted that a Time in Lieu (TIL) practice existed whereby he could come to work at 9:30 am and then go to referee a   match at 11:30 am, following which he would return to work. In further evidence to Complainant stated that he had only been refused leave to referee   on three occasions in twelve years.

With regard to the request for leave on 1/2 June, the Complainant submitted that he had previously advised the former Operations Manager of his   requirement to referee matches on those dates.

It was submitted on behalf of the Respondent by their legal representative that the Complainant held a position of responsibility within the organisation. Despite the operational needs at the time of the Complainant's leave request, the Respondent agreed to accommodate him by granting one of the two days requested.

This Respondent stated that notwithstanding this accommodation, the Complainant decided to call in sick on the day for which his request had not   been approved, so that he could referee football match. The Respondent stated that it was their understanding that the Complainant received remuneration for refereeing the match.

The Respondent submitted that the Complainant's unauthorised absence from work and uncertified declaration of illness was in breach of his terms   and conditions of employment. Furthermore, the Respondent contended that there was a breach of the implied terms of trust and confidence between the two parties and therefore submitted that the Complainant's dismissal was warranted and fair in all of the circumstances.

The Respondent submitted that, in reaching this decision, it was entitled to take into consideration the fact that the Complainant was on an   active final written warning as a result of previous, unrelated disciplinary issue.

The Respondent further submitted that they followed fair and reasonable process in conducting the disciplinary procedures and that the Complainant had been treated fairly and accordance with good practice.

In conclusion, the Respondent submitted that in a context where the Complainant had admitted his dishonest conduct, they were justified in taking   disciplinary action against him and, in all the circumstances the decision to dismiss was fair and worked.

The facts of this case are not in dispute. The Complainant had applied for annual leave for 1 and 2 June 2016 and when his employer only approved the first of those two days, he called in sick on the second day and proceeded to referee a football match which he had been scheduled to do   on that day.

I am satisfied from the evidence presented that the Operations Manager gave good and careful consideration of the Complainant's leave request and, clearly based on an assessment of the operational needs of the business at that time, approved one of the two requested.

When the Complainant informed the Operations Manager that he was dissatisfied with her decision, he was directed to raise the matter with the   next line of management, the General Manager. However, based on his perceptions of difficulties that existed in his working relationship with the   General Manager, the Complainant did not follow the normal grievance process.  

Consequently, having taken the days leave that was approved by the Operations Manager, the Complainant called in sick on the second day. The   evidence suggests that the Complainant was well enough to referee a football match and it is also noted that he was not in a position to provide medical   certification to support his contention that he was unwell.

The Complainant was, at the time of this incident, on a final   written warning arising out of the previous disciplinary process. It was clear   from the evidence presented that the Complainant was dissatisfied with that   decision and he sought to have this aspect also raised as part of his current   complaint. Other than to confirm that the sanction in question was active at   the time of the current disciplinary process, I had no jurisdiction to   consider the earlier process. I am satisfied from the evidence presented at   the Hearing that the Complainant was on an active final written warning at   the time the incident, under consideration in this case, took place.

At a point in time when he was on a final written warning, the   Complainant made a clear and deliberate decision to go referee football match   on a day when his request for annual leave had been declined. This decision involved advising his employer that he was too unwell to attend work. However, his refereeing of a football match on that morning raises serious questions as to the validity of his contention that he was unwell.

I am fully satisfied that it was more than reasonable for the Respondent to consider the complainant's actions, in relation to his non-attendance at   work on 2 June 2016, as gross misconduct, as a result of which the bond of trust, that is so important between employer and employee, has been   completely sundered.

Consequently, taking all the above into consideration, I find it reasonable that the Respondent, having provided what was clearly a fair and procedurally sound disciplinary process, would conclude that they had no option but to consider dismissal as an appropriate sanction in this case.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I am satisfied that the   Respondent was justified in taking disciplinary action against the complainant and that the sanction imposed following that process was both   fair and warranted in the circumstances.

Consequently, I find that to the Complainant's complaint of unfair dismissal is not upheld.

Unfair Dismissal

Finally Written Warning

Unauthorised Sick Leave

Annual Leave Request refusal