ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003771
Parties:
| Complainant | Respondent |
Parties | General Operative | Dairy Processing Plant |
Complaint(s):
|
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-00005572-001 | 29/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00005572-002 | 29/06/2016 |
Date of Adjudication Hearing: 04/05/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Further submissions were furnished following the second hearing and the final submission was received from the claimant’s representative on the 31st.May 2017
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 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).
Summary of Respondent’s Case:
The respondent set out the history of the claimant’s employment – he was employed as a production operator since May 2014 , worked a 39 hour week and earned approx. €550 per week. The claimant was invited to a disciplinary meeting by way of a hand delivered letter on the 10th.June 2016 “ following your failure to follow the correct Absence Notification Procedure on Tuesday 7th.June 2016 and also to review your absenteeism record”.He was advised of his right to representation and attended the meeting on the 14thJune 2016 – he was dismissed on the 15th.June and appealed the decision. Ultimately the appeal was rejected. It was submitted that the claimant was dismissed on 2 grounds ; failure to adhere to the absence notification procedure and by staying at home to look after his sick greyhound the claimant was found guilty of “ engaging in remunerative employment while absent from work , irrespective of whether the absence is covered by medical certificate or not”.It was found that the claimant not only breached company policy , he did so in a cavalier manner without regard to his contractual obligations to the respondent. It was submitted that the claimant’s absence records indicated that he was out 11 times in the previous 12 months .When the claimant was challenged about not ringing anyone to say he would not be attending work on the 7th.June, it was asserted that the claimant replied that his greyhound had surgery and he had to stay with him as he could not allow the stitches to burst as this was another income he had to look after. It was submitted that the claimant gave absolute priority to looking after his greyhound for primarily commercial and financial considerations as he is engaged in a business operation .It was submitted that the claimant’s external business interests were considered to be a significant contributing factor , if not the main factor , to his absenteeism record and that a decision was made that the appropriate sanction would be dismissal. It was submitted that the dismissal was fair and the employer was reasonable and proportionate– it ensued following an informal meeting where the claimant failed to follow correct procedures following an absence on the 28th.Jan.2016.It was submitted that the claimant failed to follow correct procedures regarding his absence on the 7th.June 2016 and a review of his attendance record revealed 11 absence in the previous 12 months. The respondent did not consider the sick greyhound a justifiable reason for an unapproved absence. Reference was made to the provisions in the claimant’s contract regarding devoting “ the whole of your time , attention and abilities during your hours of work for the respondent..”. By failing to attend work owing to his commitments to an alternative business , it was submitted that the claimant breached the terms and conditions of his employment .It was submitted that this was a grave breach of discipline/serious misconduct. In a post hearing submission concerning the claimant’s start time on the 7th.June 2016, the respondent advised: “An examination of our Clockwise records show that during the particular week in question the claimant had a number of different start times including 6.00am and 9.00am starts. We can confirm that he would not have been scheduled to work at 8.00am as this start time was not part of shift pattern in this area. We are unable to state definitively what time the claimant was due to start on that day however it is our belief as it was the claimant’s prior to the hearing on the 4th.May that he was in fact due to start at 6.00am.This was also confirmed in the claimant’s original written submission to the hearing”.
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Summary of Complainant’s Case:
The claimant’s representative presented a chronology of the events leading up to the claimant’s dismissal and the rejection of his appeal. It was submitted that the decision to dismiss was unfair, unreasonable and disproportionate and that fair procedures had not been followed. It was contended that in addition to the 2 grounds for dismissal, the respondent also factored in the claimant’s absenteeism record. It was submitted that on the morning of the 7th.June 2016, the claimant was due to start at 6.00am.- he sent a text message to his supervisor stating that he could not attend as his greyhound had surgery the previous evening and on the advice of the vet he had to remain with the dog to ensure the stitches would not burst open. It was submitted that the Supervisor responded “OK” later in the morning. It was the claimant’s understanding that he had followed correct procedures as had been clarified to him on a previous occasion by his supervisor. It was contended that when the claimant was counselled regarding his Jan 2016 absence there was no concern regarding the claimant’s absenteeism at that point – the respondent’s records demonstrate that the claimant was absent on 6 occasions since the January incident and prior to the dismissal. It was submitted that the respondent dropped this into the disciplinary process to strengthen the decision to dismiss. The claimant was unaware he was attending a disciplinary meeting on the 19th.June 2016- he did not seek representation as he did not consider that anything other than absence notification procedures was on the agenda. The claimant was shocked to learn that engaging in remunerative employment when absent from work was one of the grounds of dismissal .The claimant denied the allegation and submitted that his limited interest in dogs could not be construed to constitute remunerative employment. The respondent had failed to furnish the claimant with the minutes of the dismissal meeting prior to the dismissal and the minutes were disputed by the claimant – in particular the reference to the claimant “ said it was another income he had to look after”. It was contended that there was a significant element of predetermination from the outset of the dismissal process ; the invitation to the disciplinary meeting failed to advise the claimant that his job was in jeopardy and the investigation and process was poor. The provisions of LCR 17042 , UD1719/2013and UD 2439/2011 were invoked in support of these arguments. It was submitted that the investigation was incomplete as no evidence of the claimant’s engagement in other remunerative employment was presented. It was submitted that the respondent had failed to consider alternatives to dismissal. In a post hearing submission, the claimant’s representative stated “the claimant is certain that he was due to work at 8.00a.m. on the morning in question and is somewhat surprised that the respondent is unable to state definitively what time he was due to start.The claimant stated during the second hearing on the 4th.May 2017 , that having received the various copies of the exchanged text messages between him and his supervisor and line manager that he remembered that he was actually due to start at 8.0a.m. on the morning in question and not at 6.00a.m.as was stated in our original submission. The respondent states that an examination of their clockwise records show that during that particular week in question the claimant had a number of different start times including 6.00am and 9.00am starts.It is therefore convenient or unfortunate that the respondent cannot give the Adjudication Services a definitive start time for the claimant on that particular morning despite their assertion during the hearings that the only start time was 6.00a.m.” At the second hearing , documentation was submitted to challenge the respondent’s assertion that the greyhound was a significant source of income – it was argued that on the contrary , greyhound training was a hobby yielding very little in terms of income and could not in any way be construed as an alternative source of income. |
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.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have reviewed the evidence and submissions presented at both hearings and the post hearing letters exchanged between the parties.
I note that the company procedures provide for an escalating disciplinary procedure – commencing with a verbal warning Stage 1 and culminating in dismissal at Stage 4.I note that the claimant was the subject of a “ council session “ on the 10th.Feb.2016 concerning an absence in January. I further note that the claimant was invited to a formal disciplinary meeting on the 10th.June 2016 following his failure “ to follow the correct Absence Notification Procedures on Tuesday 7th.June 2016 and also to review your absenteeism record”.The respondent’s own records of the disciplinary meeting – which were not furnished to the claimant for the purposes of agreeing the minutes and which were disputed by the claimant” indicate that a decision had been taken to sanction the claimant and that “ it was a pity he didn’t bring someone with him to the meeting”.I further note that the invitation to attend the meeting failed to advise the claimant that dismissal was a potential outcome of same.In the event , according to company correspondence to the Commission on the 17th.Jan.2017 , the claimant’s alleged statement “ that he could not attend work on the day in question i.e. 7th.June 2016 as he had to look after his sick greyhound which was ‘other income’ he had to look after …This is the substantive point and ground for the decision to dismiss”.
This chronology demonstrates that the respondent failed to observe their own escalating procedure and did not afford the claimant his rights under natural justice as he was dismissed for reasons other than those set out in the invitation to attend the disciplinary hearing.This was fundamentally unfair to the claimant .Additionally , I note that the respondent failed to set out the reasoning for the rejection of the claimant’s appeal and no compelling evidence was advanced to demonstrate that the respondent had considered an alternative to dismissal.In all of the circumstances therefore I am upholding the complaint of unfair dismissal.I have concluded that the claimant has to bear some responsibility for his dismissal by virtue of his absence record and this is reflected in the quantum of compensation set out below.
I require the respondent to pay the claimant €12,500 compensation within 42 days of the date of this decision.
I am satisfied that the claimant was entitled to notice and require the respondent to pay him 2 weeks notice in accordance with the Minimum Notice and Terms of Employment Act 1973-2005.
Dated: 8/11/17
Workplace Relations Commission Adjudication Officer: Emer O'Shea