ADJ-00006256

Complainant

Respondent

Parties

A Bakery Operative

A Bakery

Representatives

P Rowsome ( A Union Official acting in a private capacity)

Conor O'Gorman IBEC

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-00008516-001

01/12/2016

Written and supporting oral submissions were made.

The Respondent relies on Section 6 (4) (b) of the Unfair Dismissal Act 1977 namely that a dismissal is fair if it arises from or is a consequence of deficiencies, “wholly or mainly”, in the “Conduct” of the Employee.

A full investigation was carried out, all fair procedures were followed, an appeal was allowed and heard. The rules of natural justice were observed scrupulously at all times.

In relation to the question as to whether or not the sanction of Dismissal was proportionate the issues involved centred on the Company Clocking/Time Recording System. These issues are of the utmost gravity, are clearly understood by all employees and breaches of the rules can only have the most serious consequences. Dismissal was the only appropriate remedy.

Written and supporting oral submissions were made.

The Complainant had worked for the Respondent Company for some 16 years without any major issues. It was accepted that there had been some disciplinary issues over the last few years but most of the warnings were now “spent”.

The issues arising on the 19^th September 2016 have been blown out of all proportion by the Respondents. The Complainant had openly admitted not observing the clocking policy, especially as regards breaks, which had been introduced in June 2016. Paradoxically the Complainant’s behaviour was somewhat bizarre as he was working while clocked out for a break and on a break while clocked in.

The Complainant made no effort at concealment of his actions. He was seen by Managers, any one of whom could have spoken to him on the day and averted the entire issue.

As regards the Investigation and Disciplinary procedures the entire issue of representation was flawed. The Complainant alleged that he was not afforded the right to have an outside person accompany him and the efforts of the Respondent to provide him with a witness that he did not know were completely inappropriate. He was, in effect, overwhelmed by meetings in Manager’s Offices and could not really have made his case properly.

The Respondents’ had a range of other sanctions available to them such as a Written Warning which made the decision to go for the final sanction of Dismissal completely disproportionate.

In final submission the Complainant's Representative pointed out that the Complainant has an Asperger’s diagnosis.

3:1     The Law

The Unfair Dismissals Act, 1977 especially Section 6 and S.I. 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures applies. There is also extensive case law and precedents. The key principle that applies is that Natural Justice has to apply at all times.

In addition any Sanctions have to be proportionate. However, it is not the role of the Adjudication Officer or the EAT formerly to reinvestigate a Dismissal decision as long as the Decision can be seen to fall within what is referred to as the “Band of reasonableness” for an employer in the sector involved.

In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 Mr Justice Flood stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

3:2     Consideration of the Evidence presented.

There can be no doubt that the Respondent followed all proper formal procedures- extensive evidence was given to this effect. The investigation was thorough and supported by good records & witness testimony. No fault can attach to the Respondent here.

The question of allowing Representation to the particular Complainant in this case was more difficult – the history of the Compliant and indeed his oral evidence at Investigations/Disciplinary Hearings (as reported in the minutes supplied) and on the day of the Adjudication hearing indicated a person with some communications issues – it was interesting that the Complainant’s representative pointed to an Asperger’s situation. The Respondent’s could not have been unaware of this communications situation. The Complainant had been an employee for some 16 years. The Complainant’s ability to fully participate , on his own without adequate representation ,in meetings in Manager’s offices was an issue I felt was not adequately addressed as was his full grasp ,in the early stages , of the seriousness and possible repercussions , of his actions.

A greater effort, in the circumstances of this case, should have been made by the Respondent to ensure that the Complainant had full representation. The effective summoning by the Management of a support person from the Restaurant that the Complainant maintained he did not know and had never consulted before the meeting was not helpful to the Respondent’s case. In addition the evidence from the Complainant’s father that he had sought to attend the Appeal Hearing but had been refused ,in line with Company policy, by the HR Manager, (now no longer with the Company an accordingly unavailable as a witness) was I felt credible.

The charge of Clock Card Fraud, essentially the issue here, normally involves a staff member wilfully engaging in behaviour that is serious, almost criminal fraud, clocking another staff member’s card when that person is absent being a common situation or having a fellow employee clock a person in when in effect the employee is absent. None of these apply here. The bizarre situation of working while clocked out and on break while clocked in is most unusual and did not indicate to me a major effort at almost criminal dishonesty.

The allegation of systematic fraud of the system, proportionate to justifying a complete dismissal, I found hard to justify.

In addition the incidents at the centre of the case took place on one Day, the 19^th September 2016. It is acknowledged that there was a Written Warning on the system, at the time, against the Employee. In oral evidence the Respondent’s denied that this had any bearing on the dismissal decision which was focused on the clocking incidents alone. Using incidents of one day, to justify a dismissal after a sixteen year career, would in normal understanding require a matter of the utmost seriousness such as a grievous violent assault on a fellow employee or serious wilful damage/sabotage to the Production facilities.

3:3     Key questions – the “Band of Reasonableness” and how “Proportionate” was the Decision?

Reverting to Mr. justice Flood’s comments above at point 5 of the quoted extract

“The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.”

The plain facts were that a single day’s incidents were being relied upon to base the dismissal decision of an employee, with some 16 years service, which would have very long term consequences for the Complainant.

Regarding precedents in “Clocking” cases the McCormack v Manufacturing Services Athlone Ltd [2000] E.L.R. 86is noteworthy. Here the claimants had left the premises without clocking out; they argued that leaving the premises was quite common. They would sometimes be accompanied by their team leader and clocking-out procedures would be overlooked. It was determined by the EAT that in all the circumstances the penalty of dismissal was too severe.

In Noritake (Ireland) Ltd v Kenna (UD/88/1983); followed in Bigaignon v Powerteam Electrical Services Ltd [2012] E.L.R. 195 the EAT applied the test

(a)Did the Respondent believe that the claimant misconducted himself as alleged?

(b)If so, did the Respondent have reasonable grounds to sustain that belief?

(c)If so, was the penalty of dismissal proportionate to the alleged misconduct?

In regard to point C above and noting Mr. Justice Flood’s view as quoted above regarding severity the EAT has also had regard, in looking at sanctions applied , to the length of service of the Complainant.

3:4   Conclusions

Accordingly having considered all the evidence, both oral and written, I found the Dismissal is this case a disproportionate sanction where the options of a final written warning or a period of paid or unpaid suspension were provided for in the Respondent‘s Disciplinary Procedures. I did not find that summary dismissal fell within the “Band of Reasonableness”.

Accordingly, having considered all the evidence both written and oral I find that the Dismissal is unfair due to the disproportionate nature of the sanction imposed.