ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004831 

Complaint:

Date of Adjudication Hearing: 7th June 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Location of Hearing: Dublin

Procedure:

On the 8^th September 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts. The complaint was initially scheduled for adjudication on the 2^nd May 2017 and re-scheduled to the 7^th June 2017. The reason for the adjournment was the illness of the complainant.

On the 7^th June 2017, the three witnesses for the respondent attended the adjudication and it was represented by IBEC. The solicitor for the complainant attended the adjudication and informed the hearing that the complainant had suffered a panic attack and had left the building.

In accordance with section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, 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 challenges the respondent’s decision to dismiss him on grounds of serious misconduct. Those grounds were the decision of the complainant to use chewing gum at a time he was working on a bread production line. The respondent asserts that the dismissal was not unfair.

Summary of Complainant’s Case:

The solicitor for the complainant explained the circumstances of the complainant’s absence and that the complainant had left the building. He could not be located or contacted. The solicitor requested an adjournment and in the alternative, sought that the case proceed in the absence of the complainant. He referred to the burden in law placed on the employer to demonstrate that the dismissal was not unfair. It was submitted that the reasons the dismissal was unfair included the fact that the disciplinary manager had conducted the investigation; other workers had chewed gum on the factory floor and no action was taken against them; the allegations had not been reduced to writing and were unclear; the complainant had not been allowed representation in the process and the sanction was disproportionate.

In email correspondence submitted after the hearing, the solicitor for the complainant submitted a medical note of the 9^th June 2017 which states: “The above suffered a panic/anxiety attack prior to his court case on 07/06/2017. He became very agitated when he entered the court room. He needs to probably be prescribed an anxiolytic prior to his next court appearance.”

Summary of Respondent’s Case:

The respondent outlined that it attended the original scheduled date for adjudication on the 2^nd May 2017 and in the circumstances, consented to an adjournment. It was not in a position to now accede to the adjournment request made on behalf of the complainant. The respondent also sought that the case be dismissed in accordance with section 8C of the Unfair Dismissals Acts and that no appeal would lie from this. It submitted that the case could not proceed in the absence of the complainant as questions could not be put to the complainant about his evidence. It was unfair that questions could be put on his behalf to the respondent witnesses, when this same facility would not be afforded to the respondent.

The respondent was circulated with the correspondence submitted on behalf of the complainant after the hearing. In their reply of the 21^st July 2017, the respondent indicated its opposition to the re-scheduling of the adjudication on grounds of natural justice and fair procedures.

Findings and Conclusions:

The Workplace Relations Act and its amendments to the Unfair Dismissals Act provide for the adjudication of complaints and disputes related to the workplace. Parties have an entitlement to fair procedures in the hearing and determination of complaints. In this case, the complainant referred a complaint of unfair dismissal and, I am informed, was in attendance at the venue of this adjudication prior to its scheduled time for commencement. I am further informed that the complainant suffered a panic attack and this was the reason he was not present when the hearing was due to start. I accept the bona fides of the complainant and that this was the reason he was not present. The questions to be determined are firstly, whether the matter should again be adjourned and secondly, could the case proceed in the complainant’s absence.

This case was initially scheduled to be heard before a different adjudicator on the 2^nd May 2017. The respondent attended on that date and the complainant did not attend for similar reasons to his non-attendance on the 7^th June 2017. Given that the 7^th June 2017 was the second time the respondent had attended an adjudication to meet the claim, it was not fair or reasonable to grant the complainant a further adjournment. Given the informal nature of WRC adjudications and the fact that they take place in meeting rooms, it is not unreasonable to expect a party to attend the hearing and to make the necessary preparations to facilitate their attendance. For these reasons, I did not grant the request for an adjournment.

On the 12^th June 2017, the solicitor for the complainant submitted a medical letter from his GP regarding the prescription of an anxiolytic prior to a future hearing. In correspondence of the 21^st July 2017, the respondent opposed any rescheduling. If this was the first occasion in which the complainant could not attend a hearing due to a panic attack, it would be appropriate to allow for the hearing to be re-scheduled. This, however, was the second occasion in which the complainant did not attend. While I note the contents of the letter of the 12^th June 2017, it is not appropriate to accede to the request for a third date to be scheduled.

The second issue is whether the case could proceed in the absence of the complainant. The respondent asserted that it was unfair for its witnesses to be subjected to questioning by the complainant’s representative when it was not afforded the same facility. This was particularly the case as the complainant was relying on allegations that colleagues had used chewing gum while on the production line. Having considered the submissions of the parties, I find that a complainant (be they an employee, a former employee or a personal representative) is expected to attend an adjudication hearing to move their claim, including in circumstances where the statute places the legal burden on the employer. I concluded that the hearing should not proceed.

My decision below is that the claim fails because the complainant was not present to move their claim. This is a decision made pursuant to section 8(1B) of the Unfair Dismissals Act and not pursuant to section 8C of the Unfair Dismissals Act. It is not appropriate to exercise the power of striking out pursuant to section 8C without advance notice being given to the parties. I also note that section 8C applies to claims not pursued over the course of one year.

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.

Pursuant to section 8(1B) of the Unfair Dismissals Act and for the above reasons, I find that the claim fails because the complainant failed to attend the adjudication hearing to move his complaint.

Dated:   1 September 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Unfair Dismissal Act

Section 8(1B) and Section 8C of the Act

Complainant obligation to attend adjudication to move complaint