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-00007959-001

03/11/2016

The respondent is a meat processing   business. The complainant commenced work in May, 2005. Up and until 28^th   September, 2016 there were no issues with the complainant. On the 28^th   he and several other works left their station without permission and went for   a break. On the way they met with their supervisor who told them to return to   work immediately. Most of them returned to their stations but the complainant   did not. On the same evening the   complainant left early, without permission and again on the 29^th   he left the factory to go to insure his car. He did so without the knowledge   or permission of his supervisor. The company policy clear sets out that   leaving ones workstation can be deemed to be gross misconduct. Due to the   fact that the respondent deals with raw meat product there is a zero   tolerance on leaving ones station without permission. In the past a demerit   system was used in relation to absenteeism and lateness but after an E.A.T   decision some years ago it is no longer used. In any event, leaving ones   station in the middle of the shift is neither absenteeism or lateness.

The complainant was suspended   by letter dated the 30^th September, 2016. Therein the three allegations   of misconduct were set out.

An Employee from accounts was   asked to carry out the investigation. He did so. The complainant was invited   to an investigation meeting by letter dated the 30^th September,   2016. Again the three allegations of misconduct were set out and he was   informed of his right to bring a colleague. Having completed the   investigation he concluded that the matter should be advanced to a   disciplinary hearing. The complainant was furnished with a copy of the   investigation report.

The matter was then progressed   to a disciplinary hearing. The   complainant was invited to a disciplinary meeting which said meeting took   place on the 7^th October,   2016. Following that meeting by letter dated the 10^th   October, 2016 he was furnished with minutes of the meeting together with the   decision to terminate his employment. He was also informed of his right to   appeal the decision.

The complainant did not appeal   the decision.

The Claimant commenced work   with the Respondent as a general operative on or about 10 May 2004. The   Claimant only received a copy of the document referred to in his contract as   ‘Company Works Rules and Conditions’ at a disciplinary meeting on the 5th   October, 2016.

The Claimant was unfairly   dismissed on or about the 10th October 2016.   The reason for the Claimant’s dismissal was set out in a letter of the   same date as being follows:

‘your behaviour is not acceptable and cannot be tolerated within XXXX.’

The complainant stated that the   dismissal was both substantively and procedurally unfair and that If any   sanction was warranted, then even on the Respondent’s own case dismissal was   a wholly disproportionate response.

The allegations that led to the   Claimant’s dismissal were first set out in a letter from the Respondent to   the Claimant dated 30 September 2016   as follows:

‘Failure to receive authorised permission from your supervisor to   leave your work station on the 28th & 29th of September 2016;

Failure to receive authorised permission from your supervisor to leave   work on the 28th & 29th of September;

Insubordination towards management’.

The allegations relating to the   28th of September relate to two distinct incidents in time. The first was an allegation that the   Claimant took an unscheduled 15 minute break from his workstation at 3.50   p.m.

Having returned to his   workstation at 4.05 p.m., at in or around 5.30 pm the Claimant clocked out   and left work when he should not have done so.  

The Respondent alleges that   when the Claimant left his workstation to take a break at 3.50 on the 28th of   September 2016, he was informed by his manager, that there was no break and instructed to   return to work. It is alleged that the   Claimant said that he was going on a break, refused to return to work and   abandoned his position.

The issue relating to this date   is that the Claimant left work at in or around 3.30 p.m. without   permission. The Claimant submits that   in reality there is only one allegation arising from this date because it was   a single transaction – he had to leave his work station to leave work. This submission is supported by the   Respondent’s own Investigation Report dated 4 October 2016 The section purporting to deal with   allegation 1, being the failure to receive authorised permission to leave the   work station on the 28th and 29th of September, does not make any reference   to any incident on the latter date.  

The first time that the   Claimant was made aware that his behaviour had given rise to disciplinary   issues was when he arrived at work on the 30th of September. A meeting was held at 9.30 a.m. ( with a   translator) where the Claimant was informed that he was to be placed on   suspension with pay pending investigation of the allegations. He was given a letter outlining the   position, that referred to ‘the Company’s Disciplinary Procedure 3.2’.

The Claimant submits that he   only received a copy of the staff handbook or ‘The Company Works Rules and   Conditions’, at a disciplinary meeting held on the 5th October, 2016.

An investigation meeting was   held with the Claimant on the 3rd of October.

The Investigation Report was   produced the day after the above meeting, on the 4th of October 2016. In conclusion it stated:

‘… I can conclude that xxx did   in fact fail to receive authorised permission to leave his work station,   failed to receive authorised permission to leave the site and displayed   insubordination towards management’.

It was only after the above findings were made that   the claimant was informed that he might face dismissal. This was set out in a letter dated the 5th   of October 2016, that also notified him of a disciplinary hearing on the 7th   of October.

By letter dated 10 October 2016the disciplinary   officer then issued the Claimant’s dismissal letter.

The Claimant did not avail of   the appeal due to the fact that he no longer had trust in the Respondent or   its procedures.

Unfair Dismissal

Section 6 of the Unfair   Dismissals Act 1977 as amended (‘the Act’) provides inter alia as follows:

‘(1) Subject to the provisions of this section, the dismissal of an   employee shall be deemed, for the purposes of this Act, to be an unfair   dismissal unless, having regard to all the circumstances, there were   substantial grounds justifying the dismissal.’

Subsection (4) (c)

“provides that a dismissal of an employee will not be unfair if it   results wholly or mainly from inter alia the conduct of the employee. In addition, subsection (7) provides that   where appropriate, regard may be had to the reasonableness of the conduct of   the Respondent with regard to the dismissal.”

The complainant was suspended   on the 30th September with pay pending the outcome of the investigation. Bank   of Ireland v Reilly [ unreported ][2015 IEHC 241 Noonan J stated:

“The suspension of an employee, whether paid or unpaid, is an   extremely serious measure which can cause irreparable damage to his or her   reputation and standing. It is potentially capable of constituting a   significant blemish on the employee’s employment record with consequences for   his or her future. As noted by Kearns J in Morgan v Trinity College, there   are two types of suspension, holding and punitive. However even a holding   suspension can have consequences of the kind mentioned. Inevitably   speculation will arise as to the reasons for the suspension on the premise of   there being no smoke without fire.”

There   are cases were a suspension is not warranted. However, in this case in   circumstances where the respondent believed the complainant left his station on   three occasions in the space of twenty four hours coupled with the fact that   he was working with raw meat products, it was warranted. There are very   strict rules in relation to the handling of and preparation of raw meat   products and the respondent, by suspending the complainant reduced/   eliminated the risks that are associated with raw meat product.

The   investigation was carried out and it was determined that the matter should go   to a disciplinary hearing. The respondent took issue with the investigators   findings stating that he had pre-determined the disciplinary outcome. I do   not agree with the complainant. Whilst the findings could have been worded   better, it is clear that all the investigation officer was saying was that   based on the facts he had before him the matter warranted a disciplinary   hearing.

I find that   the respondent’s investigation and disciplinary process were fair and   transparent. The real question I must now deal with is the issue of   proportionality.

The   complainant had a very good disciplinary record. Within a 24hr period there   were three issues. In making a finding of unfair dismissal in the case of McHugh v AIB Group, UD/1077/2014, the   Employment Appeals Tribunal placed significant emphasis on the necessity for   a sanction to be proportionate to the conduct / misconduct concerned. In doing so it relied on the previous   decision of that Tribunal in Snia Ireland Limited v Connelly,   UD.194.1983 in which it was decided that:

‘Misconduct must be measured in the context of the employee’s act, not   just its consequences or potential consequences to the employer. The reasons for the act have to be   evaluated and put into the context of his employment and responsibility.

In that case the Tribunal also   decided that, in view of the Claimant’s long, incident free service, a lesser   sanction should have been considered and imposed.

In this case there were three   acts of misconduct in a very short space of time. I do not accept the   complainant’s explanation in relation to the second and three act of misconduct.   From the photographic evidence adduced it was clear that meat was still   coming down the line when the complainant left his post 5.30pm. The following   day he left his post again, this time to insure his car. He accepts that he   didn’t tell his supervisor instead opting for a colleague on the line. The   fact that the complainant did not like, or get on with his supervisor is not   relevant. He should have sought permission before he left. In relation to the   first incident the complainant conceded that his supervisor told him to back   to this station and he made the decision to ignore the order and take his   break anyway. I find that on all three   occasions the complainant deliberately and with full knowledge of the rules   breached the rules. That coupled with the fact that his job involved handling   and packing of raw meat product only serves to make the matter more serious.   In all of the circumstances I find that the sanction imposed was   proportionate.

I find the complainant’s   statement that he did not appeal the decision to terminate his employment   because he no longer had trust in the respondent or its procedures is not   supported by the facts outlined during the hearing.

The complainant’s case   fails.

Unfair Dismissal. Proportionality.