ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007764
Parties:
| Complainant | Respondent |
Anonymised Parties | Warehouse Manager | Services Company |
Complaint:
|
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-00010441-001 | 27/03/2017 |
Date of Adjudication Hearing: 07/09/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and 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
Background:
The Complainant was employed with the Respondent Company from 3rd November 1998 until his summary dismissal on 24th November 2016. He was employed as Warehouse Manager on the time of termination of his employment. He was paid €1015.00 gross per week and he worked 48 hours a week. The Complainant referred a complaint to the Workplace Relations Commission (WRC) on 27th March 2017 alleging he had been unfairly dismissed by the Respondent. The dismissal was not in dispute. |
Summary of Respondent’s Case:
On 30th October 2016 at approx. 8pm and while he was at work he received a phone call from his wife who was in a distressed state telling him there were a number of individuals outside their home threatening her. The Complainant left the Warehouse and drove to his house bringing with him four other employees. All five employees returned some 20 minutes later. On his return he informed the Operations Manager via email that he had left the premises and the reason why but he failed to inform the Manager that he had taken four employees with him. The Complainant acted in blatant disregard for company rules and procedures including health and safety rules. He faild to seek prior authorisation for his absence and so placed the health and safety of the other employees in the Warehouse at risk. Further the Complainant exposed the four other employees he took with him to a dangerous and hostile situation outside his home. The Complainant had been provided with regular health and safety training
The Complainant was suspended on full pay on 11th November 2016 pending the outcome of the investigation. Witness statements were taken and provided to the Complainant as well as the investigation documents. This investigation concluded the matter should proceed to a Disciplinary Hearing. This was scheduled for 24th November 2016 and the Complainant was accompanied by his SIPTU Representative. The Respondent’s Distribution Manager carried out the Disciplinary Meeting. The Complainant was summarily dismissed on 24th November 2016.
The Complainant appealed this decision to dismiss on 28th November 2016 citing that gross misconduct was the incorrect decision made against him in the circumstances. The Appeal Hearing took place on 13th December 2016. The Complainant was again represented by his Trade Union and the General Manager UK chaired the appeal with the Customer Service Manager and a Warehouse Supervisor. The outcome was to uphold the decision to dismiss and this was communicated to the Complainant on 20th December 2016.
The Respondent stressed their responsibilities to all its employees under the 2005 Health, Safety and Welfare at Work Act. They referenced a number of Decisions of the High Court and the Employment Appeals Tribunal to support their argument that because of the health and safety risks the dismissal of the Complainant was fair and reasonable at all times of the Disciplinary and Appeals process.
Summary of Complainant’s Case:
The Complainant commenced his employment in 1998 and following a Transfer of Undertaking the Complainant worked for the Respondent Company. He was promoted to Warehouse Supervisor and then subsequently to Warehouse Manager with the Respondent Company. Prior to the incident on 30th October 2016 the Complainant had an excellent record for over 18 years.
On 30th October 2016 at approx. 8pm, and while on duty with the Respondent, he received an urgent phone call from his home in which his wife informed him that she was trapped in her home with some 8 to 10 young men outside her home and she alleged they were carrying weapons. His wife was extremely upset. The Complainant decided to leave work in his car to drive to his house which was 10 minutes away and on his way he encountered work colleagues and he requested two named fellow employees, who were on their rest break, to accompany him. Two other employees, on their own accord also decided to accompany him. The purpose was to secure his home. When they arrived at their home, the Gardai were already there and the situation was diffused.. All five employees spent no more than 5 minutes at the house as the situation was by then under the control of the Gardai. They returned immediately to the Premises of the Respondent. The Complainant emailed the Operations Manager to inform him that he had been off site for 20 minutes and the reasons for this.
The Complainant reported for work on 31st October 2016. The Respondent did not raise any issue with him. He was on annual leave the following two days and he worked the night shift on 3rd and 4th November 2016 and he returned to work again on 6th November 2016. On 7th November 2016 the Complainant was approached by the Operations Manager and he was requested to accompany the Manager to a meeting. When he entered the office he was informed “I am suspending you”. The Complainant and the Operations Manager then went to the HR Representatives Office where the Complainant was informed he was suspended for gross misconduct, unauthorised leave from site, taking four employees with him and leaving the site without a Supervisor for 20 minutes. He received a letter on 9th November concerning his suspension but this does not set out the reasons for his suspension. The Complainant alleged there was a breach of fair procedures as the Operations Manager was both accuser and the Investigator. The Respondent had also interviewed certain employees but the Complainant was not informed of this.
The letter of 9th November 20216 classified the Complainant as being guilty of “offences”. This was an invite to an investigation meeting but the Complainant was already being accused of offences and this demonstrates a pre-ordained nature of the process. Also the Complainant was not provided with any of the rules and regulations referred to in this correspondence. The Investigation meeting took place on 11th November 2016 conducted by the Operations Manager and the HR Representative, both of whom prior to this meeting had accused him of “offences” and gross misconduct. The Complainant explained the exceptional nature of the issue of 30th October 2016. This investigation meeting concluded with the Complainant being informed the issue was to proceed to a disciplinary meeting. Again this was a pre-ordained decision without the Investigators considering the issues he had raised.
The Complainant attended the Disciplinary Hearing on 24th November 2016 which was conducted by the Distribution Manager and the HR Representative as notetaker.. This meeting adjourned for an hour and a half after which he was informed he was being dismissed with immediate effect. He was notified of this decision by letter on 25th November 2016 and cited facts which had not been established either at the investigation of disciplinary meetings. .
The Complainant appealed the decision and the Appeal Hearing took place on 13th December 2016. He was informed on 20th December 2016 that the decision to dismiss him was upheld. However this letter also refers to additional matters which had not been the subject of any disciplinary process.
The Complainant argued that the decision to dismiss was unreasonable in all the circumstances and they cited a number of decisions of the High Court and the Employment Appeals Tribunal in support of their argument.
Findings and Conclusions:
On the basis of the evidence, written submissions presented at the Hearing and additional material forwarded as requested by the Adjudication officer I find as follows. - Both Parties confirmed that the Complainant had been employed since 1998 and had transferred under TUPE to the Respondent Company in 2012. Both Parties confirmed that the Complainant had been promoted to Warehouse Supervisor and then subsequently to Warehouse Manager following TUPE. - Both Parties confirmed that the Complainant had never been the subject of any other Disciplinary sanction during the course of the employment with the Respondent. - The evidence was that the Complainant had been provided with the Disciplinary Procedures of the Transferor in 2001. The evidence also was that the Complainant had completed safety training right up to 2017. - The issue is, was the absence of the Complainant for 20 minutes to deal with a potentially violent situation in the family home, without going process to obtain sanction to leave and securing a substitute Supervisor to replace him while he was absent. In the context that the Complainant was an exemplary employee faced with a personal urgent issue which required his immediate response, it would have been more appropriate for the Respondent to issue the Complainant with a lesser Disciplinary sanction than dismissal. While the Respondent in its dis missal letter to the Complainant dated 25th November 2016 does state, alternatives to dismissal were considered, it is my considered view that the decision of summary dismissal was not the appropriate, - The second issue to be considered is the decision of the Complainant to ask 2 other employees to accompany him and to allow two other employees who volunteered during their rest break to also go with him. While it is understandable that fellow employees wished to assist the Complainant in the situation which faced him this in my view was not an appropriate response by the Complainant especially in circumstances when he reported his absence on the night of 30th October 2017 but in his report to the Operations Manager he did not report that the four other employees had also been absent from the site for 20 minutes. This was undoubtedly a contributory factor in the Respondent’s decision to dismiss. However I am of the view that the appropriate response of the Respondent would have been a lesser disciplinary sanction other than dismissal. - The Complainant post the Hearing did provide evidence of mitigation of loss as requested by the Adjudication Officer. These were also communicated to the Respondent. Evidence was also provided from the Department of Social Protection that the Complainant was in receipt of Jobseekers Benefit from 25/11/2016 to 28/8/20217 and in receipt of Jobseekers Allowance effective from 29/8/2017 to date.
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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.
In accordance with Section 8 (1)(c ) of the Act and in view of my findings above I declare the complaint is well founded. The appropriate sanction would have been a lesser Disciplinary sanction given the personal circumstances of the issue which the Respondent did recognise.
I direct the Respondent to pay the Complainant compensation of €20,000.00 within 42 days of the date of this Decision.
Dated: 17/11/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Unfair Dismissal – lesser disciplinary sanction more appropriate. |