ADJ-00003427

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00003427

Complaint for Resolution:  

Date of Adjudication Hearing: 15/12/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle 

Procedure: 

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

Respondent’s Submission and Presentation:

The respondent provides security services on a contract basis to clients throughout the country .The respondent employed the complainant, a Polish national as a Security Guard in 2006. He was promoted to a Supervisor position.   The respondent terminated his employment by way of dismissal on 15 January 2016.

In September 2015, the complainant submitted his holiday request form to Mr OM (Operational Manager), seeking a period of time off at Christmas .On receipt, the company informed the complainant that the leave had not been sanctioned as it was Christmas and one of the busiest times of the year .Mr OM advised the complainant to revert back closer to the time to ascertain the viability of the request for leave. The company assumed that the complainant had complied with the request.

In November 2015, Mr OM circulated a Memo to all Full Time Security Officers to ascertain who wished to avail of the key premia day/night shifts of Christmas Eve, Christmas Day and New Years Eve off ? In addition,in the case of those rostered for the shifts, who was seeking one of the shifts off?. The complainant marked his response as seeking the three key shifts off.

On December 22, the complainant approached an administrator at the company , Ms A , informing her that there was a problem with the published roster of 17 December .The complainant informed Mr OM that he had already booked his holidays to return to Poland and would not be available to work over Christmas and New Year .Mr OM instructed the complainant to work as he was needed over the period and had not raised any problem with the 17 December roster .He informed him that there would be serious consequences if he did not comply with the company request to work.

The respondent submitted that the complainant’s response was “I will take my chances “He did not present to work over the holiday period.

On December 30, 2015, Mr OM wrote to the complainant informing him of an imminent investigation and seeking his attendance at the company office on 5 January 2016. There was a problem in the complainant receiving the correspondence as he had not notified the company of a change of address, but he attended on 5 January and met with Mr OM, having waivered the pro-offered representation.

The complainant confirmed that in the absence of formal rejection of his leave request, he made his booking for flights to Poland some two days post the application for leave .The respondent submitted details of a confirmation booking for two flights to Poland dated 25 September 2015.

The investigation concluded on January 6 by way of confirmation that:

“ I have concluded that there is a case to answer to the allegation of failing to attend work for your rostered shifts for the weeks 25 December -31 December and 1^st to 7^th January ,2016 as per your terms and conditions of employment , item 3 and code of conduct 17.3 items K and M”

The respondent invoked their Disciplinary procedure and invited the complainant to attend a disciplinary meeting on January 8 with; Ms OM .The complainant was suspended on full pay and was offered the right of representation.

The respondent held a disciplinary meeting with the complainant, who chose to attend alone. On January 12, 2016. Ms OM informed the complainant that she upheld the allegation regarding his failure to attend work and that the conduct was Gross Misconduct justifying a termination of employment. This was confirmed in writing a day later.

The respondent received an appeal of this decision and the Appeal hearing was chaired by Mr CM, Commercial manager on January 26, 2016. The appeal was based on the complainant’s long service record and disproportionate sanction .The decision taken to dismiss the complainant was upheld by Mr CM and conveyed to the complainant by means of a letter dated 28 January 2016.

The respondent submitted that the dismissal was fair in all the circumstances, given the complainants long standing familiarity with the annual leave rules at the company. They contended that the complainant’s assumption of approval of leave was without foundation as the company had clearly given a non committal response to the request contingent on a “get back to me closer to the time “clause.

The respondent argued that the complainant was a Supervisor and was as such setting a bad example to his direct reports by a disregard of Management Instructions .The respondent expressed the company disappointment at the mixed messages from the complainant ,who stated at investigation that he would have stayed to cover the shifts if he knew the company was in difficulty for cover and on another level, he was intent on taking his chances assuming the sanction would rest on a “ written warning “.

The respondent drew the attention of the hearing towards the expansion of the definition of “gross misconduct “contained in S.17.3 of the Company Disciplinary Procedures

K: Absence from a location without prior authorisation from control or the duty supervisor.

M: Wilfully failing to carry out your duties as per the site instructions and in accordance with the company’s rules and regulations.

The respondent submitted that the company believed that termination of employment was justified as clearly the complainants behaviour went to the heart of the employment relationship and made continued employment in the company totally untenable.

Evidence of Mr OM.

Mr OM confirmed that he had indicated to the complainant that he was not in a position to grant Christmas leave to him as extended leave over the season was not permitted .He was disappointed that the complainant had not contacted him post publication of the Christmas roster and that he had left it to the very last day on which he worked i.e. December 22, to seek to deal with the issue, as rosters had been completed at that stage.

He told the complainant that he was required to work 7 shifts over a two week period. In the absence of the complainant, “changes had to be made” and people had to be asked to cover. He refuted that he lacked impartiality in conducting the investigation into the complainant’s absence. Mr OM was clear that the complainant understood that the leave had been denied to him and there was no dispute on the facts that he had taken the leave.

The respondent was a small organisation with just three managers in the Office where the complainant was based.

During cross examination, Mr OM confirmed that annual leave applications were submitted in written form, to be followed up with and approval was usually confirmed by Ms A .Mr OM stated that he did not know that the complainant was intending on going abroad .He was not phased by the creation of precedent by the complainants absence .He recalled making a note confirming that the request for leave was not approved “at this stage”.

Mr OM confirmed that he had not informed the complainant that he could face dismissal; neither had he informed him of the specific consequences for his unapproved absence from work .He submitted that he found the complainant had deliberately not come to him before he left on the unapproved leave .The complainant normally requested New Years Eve off.

He submitted that the complainant was suspended due to the seriousness of his actions.

Evidence of Ms OM

Ms OM confirmed that she conducted the disciplinary hearing and his response to the facts of the case. The decision to terminate his employment was informed by the breach of trust, his higher level of responsibility as a Supervisor and the matter of his failure to attend work constituting gross misconduct. Ms OM state that she had considered options short of dismissal but believe that dismissal was the appropriate sanction.

During cross examination, Ms OM was asked whether she had notified the complainant of the non adherence to clauses “K “and “M “of the Disciplinary code? She confirmed that she had not mentioned it at the hearing. The issue of the breach of trust factored in her deliberations and the negative impact of the complainants conduct on the business. Christmas was an extremely busy time and she found the complainants behaviour deceitful.

Evidence of Mr CM:

Mr CM confirmed the submitted ground for appeal was the disproportionate sanction of dismissal. He confirmed that the complainant did not “bring anything “additional to the appeal process.

He submitted that the complainant held a very responsible and senior role in the business. He contended that the procedures associated with the dismissal were fair.

During cross examination, Mr CM confirmed that he had considered the options of

Dismissal

Final Written Warning

Relocation

He had taken his unblemished service into consideration.

He decided that the complainant had not demonstrated respect to the respondent. Mr CM confirmed that he had not made his decision to uphold the dismissal lightly and contended that the disciplinary procedure was both thorough and fair. Mr CM confirmed that he was satisfied with his decision. He submitted that the complainant was fully aware that he had not attended for his rostered shifts and it was open to him to have appealed the roster in advance of his departure.

Representative for the respondent made an extensive closing statement, relying on EAT case law in Looney V Looney UD 843/1984

He contended that the complainant had signed the Code of Conduct .He had not appraised Mr OM of the real purpose of his request for leave and the complainant had “ deliberately played the game in completing the November premia form “.

He could have said, here is the form and don’t forget, I am not here” (at Christmas time). He made no attempt to get someone to cover for him; He was deliberately secretive for a three month period prior to taking his unapproved leave from December 22.

The wrong done by the complainant was far greater than taking the leave; it was the concealment of his intention to take the leave regardless.

The respondent confirmed for the hearing that staff at the respondent base had not submitted complaints regarding the effect of the complainant’s behaviour on them.

Complainant’s Submission and Presentation:

The complainant submitted a holiday request form to cover the Christmas period in or around September 2015. The application was made to Mr OM .The complainant submitted that he was led to believe by Mr OM that his request for two weeks annual leave would be granted and began to actualise his plans by arranging with his girlfriend to book flights home to Poland for that period.

The complainant submitted that the respondent had not made a decision on the leave and it wasn’t until he saw the roster published that he realised that he was rostered .Counsel for the complainant submitted that the complainant reminded Mr OM on December 22 that he would not be able to work the roster asked of him.

The complainant returned to Ireland on January 3 and presented to his workplace on January 4, where he was presented with a letter of invitation to an investigation the next day.

Counsel drew the attention of the hearing to the Inquiries of Mr OM in relation to what the complainant would have done if the shifts at the centre of the investigation have not been capable of being covered? Counsel stated that the complainant’s response was tabled as; he would have stayed and worked. The complainant was subsequently suspended.

The complainant was dissatisfied with the overlap in the content a conduct of the Investigation Meeting and the Disciplinary meeting. The complainant enquired of Ms OM what did Suspension mean at the disciplinary hearing? And was informed that it meant that he was not to work.

The complainant submitted that the dismissal was unfair and relied on the application of the circumstances contained in an EAT case of Hanlon V Smith Kappa Irl ltd t/a Smurfit Kappa Dublin, [2016] 27 ELR 163, where an employee aligned to Jury Duty was found to be absent for part of the alignment was held to be unfairly dismissed based on a “misplaced, harsh and disprop9ortionate sanction “

The complainant argued that the facts of the instant case did not possess any dishonesty or deliberate act of misrepresentation on the part of the complainant as he believed that his leave would be granted.

The complainant submitted that he was not sufficiently on notice that “ gross misconduct “ was in fact the charge he was facing and was not told of the consequences face by him from the respondent and cited Bank Of Ireland V Reilly [2015] IEHC 241 in support . The complainant contended that the sanction of dismissal was unreasonable in the circumstances where the complainant did not intentionally set out to breach his employers trust in him. Counsel argued that dismissal was a disproportionate sanction to the impact of the absence on the employer. The respondent had placed Mr OM in a “ total involvement” role in the initial investigation , where another manager should have carried out this investigation base on Mr Oms predetermined views on the matter .The complainant contended that the Statutory code of practice on Disciplinary procedures S.I 146/2000 had been breached in not presenting an opportunity for the complainant to challenge the evidence against him at the disciplinary meeting .The complainant sought a ruling on unfair dismissal and sought the redress of compensation .

Counsel for the complainant advanced legal submissions on the contention of unfair dismissal. He contended that the company was not placed at risk by the actions of the complainant, the charge of gross misconduct was not authorised by the facts. The respondent held pre-conceived views .There was no adequate consideration of a basis for the suspension and suspension was not warranted.

Evidence of the Complainant:

The complainant had been a Supervisor for 8 years.

The complainant recalled submitting his application for annual leave to cover the Christmas period during September 2015. Mr OM told him to “leave it with me and I will see what I can do “with a smile. He told his girlfriend that it looked like his holidays were approved.

On previous occasions, a rejection of application had been left for him in a tray in the office. There was no rejection on this occasion .He had not had Christmas off previously.

A week before he was due to fly to Poland, he saw that he had been entered for work on the roster. He was sitting in the control room when he signed the roster and wanted to think about it for another day .He thought he might have an opportunity to raise it with Mr Om on the Friday but he had to leave the site to attend to a Fire alarm .He made contact with Mr OM, who instructed him to come to work.

He felt “that his 7 shifts would be easily covered “and he was conscious that the flights were expensive at €700.00 for both .He was not familiar with the code of conduct.

The complainant stated that his requested dates were written on the application form, there was no space allocated to the purpose of leave sought .The complainant stated that he couldn’t remember saying anything about dates on December 22. He contended that if he had been denied the leave, he would have come to work and his girlfriend would have gone to Poland without him, which would have been more difficult.

He recalled attending the office on January 4, 2016, hoping to see Mr OM; he recalled chatting with Ms OM where she asked if he had enjoyed his holidays. He was due to work the week of January 3 .He recalled being suspended on the following day .He contended that he had been “ attacked” by Mr OM at the Investigation meeting , where he spoke with a “ different voice than usual” .He felt he was in a court case .

He recalled telling Ms OM how important the Christmas Period was in Poland .The complainant thought he could work to show good faith and work during suspension, he had no experience of the operation of the company procedures .He was very upset by his dismissal. He had hoped to influence the appeal and had been very down for a period of four weeks and then began to look for work. He had some difficulties in getting a job as prospective employers sought reasons for his leaving his last job.

The complainant accepted that he had waivered his right to representation throughout the Investigation and disciplinary procedures. He stated that he felt the augmentation of representation would be like “bringing the Police into his own family” That was the standing that he felt his 10 year employment record reflected.

During cross examination:

The complainant confirmed that the leave had neither been approved nor rejected .He was happy at the prospect of getting home to his family and didn’t dwell on anything outside that. His girlfriend was starting her own business .When questioned By the Respondent representative on why he did not send the “ premia form back” when he knew it shouldn’t affect him ? He stated that he did not really look at it.

The complainant confirmed that he probably did say that he was prepared to take the risk in availing of the leave on December 22 but he had not been told that he might be sacked as a consequence .He denied having no interest in the company and stated that if the matter had been pushed by the company “I would probably have turned up”.

Christmas was usually a period where staff was “mad for shifts” and he had often covered his colleague’s absences at that time of the year .He had no idea that dismissal would be considered by or actioned by the company. He stated that he did not believe that he was at risk of dismissal and did not agree that he had been placed on notice of that risk.

The complainant confirmed that the days he missed through absence were:

December 27, 28, and 29 2015 and January 1, 2, 3 and 4 2016.

Findings and Conclusions of the Adjudication Officer:

I have listened carefully to both parties presentations and oral evidence in this case .I have also considered the extensive submission of documents .I gave particular attention to the contract of employment, The code of conduct for Security Officers and the notes attached to the Investigation and Disciplinary process .

The contract of employment was that of a “Static Guard “and had not evolved into a contract for a Supervisor .The contract indicated that the complainant understood the company Code of Conduct. The clause on annual leave was of interest:

I am entitled to 1.67 days holiday for each month worked ,not more than 10 days to be taken consecutively .Any request for holidays or time off consisting of more than 1-2 days should be made in writing a month in advance to the Operations Manager ……

Both parties accept that the complainant applied for Christmas leave .The dispute arose in relation to the respective perceptions of where the matter lay following this application .The complainant rightly or wrongly read Mr OMs body language to understand that he had a chance of the leave and proceeded to make early arrangements to take the leave .The respondent was very clear that the company was not in a position to grant the leave as customers and staff needs were not identifiable in September . This was borne out in the subsequent distribution of the 20 November memo to all full time Security Officers incorporating:

If you know you are rostered to work on any of the bank holidays shown and would wish not to work please indicate which shifts you would prefer not to work. (Request only one)

The respondent submitted the form completed by the complainant where he indicated a request for the three nights off. This was not challenged and the complainant was actually rostered off for the three shifts which he requested .

In this case, the onus is on the respondent to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in Section 6(4) of the Act:

(b) The conduct of the employee.

The Adjudicator is permitted to have regard for the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.

In AIB V Purcell [2012] 23 ELR 189, Linnane J stated that “It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its views for that of the employers view, but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken” This was approved in Bank Of Ireland V Reilly.

In this case, I was struck by the lack of formality surrounding the allocation of annual leave. The complainant did not report an issue in the course of his 10 year employment. The respondent certainly gave the impression that they tried to accommodate requests of staff contingent on customer needs.

Neither party was in a position to submit the original holiday request for Christmas 2015.The respondent agreed that the complainant had not overtaken his leave for 2015 and the request referred to holidays actually owed. The issue between the parties was that the leave was not approved prior to taking it.

I spent some time reflecting on the evidence of Mr OM .He described a positive working relationship with the complainant prior to this incident and it was clear to me that he remained very upset as a consequence of the actions of the complainant in disregarding his instructions. The facts of the case in Hanlon are slightly distinguished here.

The complainant in that case was seconded to Jury Duty and was found to have neither presented there or to work on key dates for which he was dismissed . This was judged disproportionate by the EAT .

In the instant case , there was no third party involvement and the complainant made preparations for annual leave which had not been officially approved . I note his reference that the leave had not been officially rejected by the respondent and that kept “the light of hope “burning over the intervening months.I accept the respondent analysis in this regard , that he kept these thoughts to himself .

There are some similarities in Hanlon on certain perceptions and interpretations of messages given to the complainant concerning the rules of attendance concerning Court and Work attendance . The respondent was clear that the complainant was placed on unambiguous notice that he was not released for Christmas leave and he was needed at work. The Complainant responded by adopting a “gambling approach “of wait and see. I find that it was open to the complainant to make some sort of accommodation with the respondent in advance of his departure and this was not actioned .

While I can fully understand the compelling attraction of sharing a family Christmas for the first time in many years ,I also note that the complainant had a duty of candour to a long standing, trusting employer . It is clear to me that the actions of the complainant caused Mr OM to feel greatly diminished in his role, as he was left to pick up the pieces of the late announcement of the complainants leave on December 22. The complainant did not assist in the resolution of the challenge faced by the company in replacing his shifts at the busiest time of the year . The respondent was disappointed to see a Supervisor behave in this way .

I considered both parties recollection of the events which followed on the complainants return to the workplace on January 4^th ,2016. The complainant was rostered for duty that week but was placed on suspension by the respondent and did not go to work .The respondent sent the letter of invitation for investigation to the complainant on Dec 30 and this referred to an allegation of failed attendance for work on 27, 28 and 29 of December . The investigation broadened this time frame to incorporate the week of 1-7 January 2016. I found this expansion of the allegation to be worrying , given that the complainant was available for work on January 4 and his version of events emphasised that he was suspended in advance of the meeting on January 5.

In Kilsaran Concrete V Vitalie Vet [2016]27 ELR 237,The Labour Court was critical of an augmentation of allegations during the process of investigation . It stressed the importance of

1 Notifications of Allegations from the Outset .

2 Scrupulous adherence to the published Disciplinary procedure .

3 An eventual sanction being proportionate.

I found that the respondent augmented the initial set of allegations in the course of the investigation and the complainant was not sufficiently on notice of this change in advance . I note that the complainant chose to “ go it alone “, without representation during all follow up meetings in January 2016. While , I must respect his right to have made the decision for the reasons cited , I found that an extra pair of eyes/ears may have been in a position to pick up on the nuances and cues inherent in the range of meetings and I believe that the complainants decision to “ go it alone “ was not to his advantage . I fully respect that the respondent offered an opportunity for representation throughout.

The Investigation found that the complainant had a case to answer for non attendance during the expanded list of shifts and confirmed a period of suspension .It was clear that the investigation process was critical of the complainant .

I found that there was insufficient guidance within the respondent Disciplinary Process on the protocol around invoking Investigations .I was struck by the proximity of MR OM to the entire series of events from September –December 2015 and I was mindful from the evidence, that at the time of the complainants return to base on January 4 , he remained extremely aggrieved by the absence of the complainant . I found his interaction with the complainant to be lacking in objectivity and it may well have served the respondent better had the investigation been conducted by an alternative manager who was not as involved as Mr OM in the case . I believe that he may have inadvertently appointed   himself as a “ judge in his own cause “

I found this to be in contrast with the complainants evidence on how Ms OM had enquired whether he had had a good holiday on January 4?.It seems to be that there was insufficient dialogue between these keys managers on the impact of the complainants absence and Mr OM may well have kept his unease to himself .

I found that the complainant was not placed on notice that he was being considered under the “ gross misconduct “ clause of the code of conduct in advance of the Investigation Meeting on January 5 or the Disciplinary meeting on January 8.He was not informed that his job was at risk . The Investigation concluded that the complainant had breached Section 17.3 ( K and M) yet, documentation on this was furnished consistent with the outcome of the Investigation not in advance .

This was a critical omission from the respondent perspective . I accept that the complainant demonstrated a certain amount of naivety in asking for a definition of suspension in the final stages of the hearing , however , I found that this reflected just where he found himself “ going through the motions “ on the way for an anticipated sanction of a written warning .

“ Gross Misconduct “ is at the zenith of possible charges relating to a Disciplinary procedure and as the Labour Court reflected in Kilsaran Concrete :

“ Summary Dismissal is the nuclear weapon of the employers arsenal of disciplinary sanctions .”

The Employment Appeals Tribunal in Lennon v Bredin M160/1978 referred to serious misconduct.

“We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category.”

While Gross Misconduct is not defined in the Act , it has been reflected in an abundance of case law .

According to Kenny J . In Glover V BLN [1971]IR 388

“ It is impossible to define the misconduct which justifies immediate dismissal ….. What is or is not misconduct must be decided in each case without the assistance of a definition or a general rule.Similarly, all that one can say about serious misconduct is that it is misconduct which the court regards as being grave and deliberate .And the standards to be applied in deciding the matter are those of men and not of angels “

In the instant case , the first specific mention of “ gross misconduct “ was established on the letter of dismissal and explained as “ You failed to attend for work for your rostered duties” . This did not provide an adequate opportunity to the complainant “ to be heard “, a fundamental element of fair procedures .

This was not remedied on appeal .

This is an unusual case .The complainant had a clean 10 year disciplinary record up to and including January 2016 .I have found that there is fault on both sides in this case .The respondent did not veto the leave request in September . Instead it was placed on a slow burner where both sides had conflicting views on the next step . The complainant adopted an “ It will be alright on the night “ approach while the respondent clearly had zero capacity for contingency in the face of the complainants “ take it or leave it “ answer to the company request to work on December 22.

In addition , a valuable opportunity to address the issue in the interim was missed in November ,2015 through the administration of the request form The fact remains,however, that the complainant had an entitlement to annual leave in December 2015 . The unilateral manner in which he claimed this entitlement goes to the root of the case .

As stated , I found a number of flaws with the procedures adopted by the respondent at Investigation, Disciplinary Hearing and Appeal stages . Losing a job equates with loss of livelihood to the workforce and the sanction of dismissal should be the “ last straw”. It was open to the respondent to consider options short of dismissal and I was not satisfied that this option was exercised reasonably .

I found that the single episodic nature of the circumstances of the case , the gravity of the breach and the lack of immediate detrimental impact on the business was in sufficient to amount to gross misconduct. In addition , I found that there was a lack of clarity in the allegations placed before the complainant in relation to the breadth and application of Section 17.3( m) (k) of the Code of Conduct .I must conclude and accept that he had no idea that his dismissal was in contemplation by his employer .

I found extensive evidence that the complainant acted in an impetuous and opportunistic manner towards his employer which hurt his manager deeply . However , I found the conduct of the employer to be ultimately unforgiving and unreasonable towards the complainant .

I find that the respondent has not met the test for establishing a substantial reason for the dismissal of the complainant in accordance with S. 6 (4)(b) of the Act and I have found a significant shortfall in the application of fair procedures in this case which taken together render the Dismissal Unfair .

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 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.

As I have concluded that the complainant has been unfairly dismissed and mindful of the complainants’ contribution to his dismissal, I find that compensation is the only practical option of redress open to me under Section 7 of the Act.

I have considered the evidence adduced on mitigation and loss. Based on the complainants’ stated current work profile submitted at the hearing. I hereby order the respondent to pay the complainant €10,000 in compensation for the Unfair Dismissal. 

Dated:   30 March 2017