ADJ-00005138

Complainant

Respondent

Parties

A Senior Operative

A Food Manufacturer

Representatives

PV Boland & Son Solicitors

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00007219-001

27/09/2016

The Complainant claims that he was unfairly dismissed by the Respondent from his position as a Senior Operative within the meaning of Section 6 of the Unfair Dismissals Acts. The Respondent disputes the claim of unfair dismissal and claims that the Complainant’s employment was terminated by reason of serious misconduct.

The Complainant commenced employment with the Respondent in January, 2003 and was employed as a Senior Operative at the time of dismissal. The Complainant, who is Filipino national came to Ireland specifically to work for the Respondent and as of the date of dismissal he had worked for 13 years without incident. The Complainant was dismissed from his employment on 29^th April, 2016. His appeal hearing was heard on 27^th June, 2016 and the decision to uphold the dismissal was communicated to him on 28^th June, 2016.

The Complainant was observed leaving the work site during his normal hours on 18^th April, 2016 and an investigation into this matter commenced on 20^th April, 2016. The investigation determined that the Complainant had 145 hours of unauthorised absences from the work site. Following the investigation several meetings under the Company’s Disciplinary Procedure took place and the Complainant was dismissed on 29^th April, 2016. The Complainant was in continuous exclusive service with the Respondent for approximately 13 years without incident and he had not previously engaged in any other employment in the State. The Complainant submits that the decision to dismiss was not proportionate to the gravity of the offences and the gravity and effect that the said dismissal had on him personally.

The Complainant was dismissed on the grounds of serious misconduct for 1) Unauthorised use of company property 2) Deliberate or improper use of the time clock and 3) Conduct giving rise to reasonable suspicion of deception/dishonesty. The Complainant submits that the grounds of dismissal contain hidden inferences and are not factually representative of the offences as they occurred. The Employee Handbook lists the following as offences that would normally result in disciplinary sanction, but are not classified as serious misconduct:

a)      Leaving the company premises for private purposes during a work period without prior agreement from their manager, and

b)      Leaving the company premises for private purposes during a work period without clocking off.

The Complainant submitted that either, or both, of the above mentioned less serious offences could have disposed of the issue without the necessity to lay a more serious charge of unauthorised use of company property which was a far more serious offence than what actually occurred. The Complainant submitted it follows that the charge laid and the penalty imposed were unwarranted and disproportionate in all of the circumstances.

The Complainant explained his absences during the disciplinary procedures. It was submitted that he was under enormous stress due to personal issues and was struggling to cope. At the material time he was separated from his partner and young child and was having difficulties with property he owned in the Philippines. The Respondent failed to afford any or adequate weight to the circumstances which the Complainant found himself in at the time of the offences. It was submitted that the Respondent unreasonably and erroneously concluded that the offences were deliberate and intentional in nature.

It is further submitted that the Respondent explored no options other than dismissal which was unreasonable. Sanctions such as demotion, repayment of the hours and/or suspension without pay would have been more reasonable considering the Complainant’s length of service and previous good work record. It is submitted, as such, the Complainant’s dismissal is disproportionate to the offences and thus constitutes an unfair dismissal.

The Respondent company is engaged in the manufacture of frozen foods. The company is a 24/7 operation and most employees work on a rostered shift basis, including the Complainant. The Respondent submitted that managing attendance and ensuring good practices in terms of punctuality is vital to the business and the company reflects this ethos in both its practices and in its contracts of employment and handbook. Continual tardiness, absenteeism or unauthorised absences are dealt with through the disciplinary process and the Company’s policies reflect this practice.    

The Respondent submitted that it came to the Company’s attention that the Complainant was missing from work without approval in early April, 2016. Following an initial preliminary investigation, the Company found that the Complainant had been absent from work on numerous occasions without approval from his manager. All employees are required to clock in/out using the Company’s time recording system and the entrances and exits from the Company’s premises is tagged by way of electronic fobs; so the Company was able to collate a report of the Complainant’s movements in order to determine if he was present at work in line with his roster. This report was shared with the Complainant. It was decided to gather data for a period of 12 months preceding April, 2016. This report demonstrated that the Complainant was missing from work on unauthorised absence for a total of 145 hours. The Complainant was paid for this time which equates to €1,994.80 in salary paid to him for hours he had not worked.

The Complainant was invited to a preliminary investigation meeting into the above absences on 20^th April, 2016 and he was afforded the opportunity to have a representative present (by way of a work colleague in line with the Company’s policy) and access to a translator (as English is not his first language). The Complainant declined both offers and proceeded with the investigation meeting.  

The conclusion of the investigation process was that the matter be reviewed under the auspices of the Company’s Disciplinary Procedure. The Complainant attended a disciplinary meeting on 25^th April, 2016. The Complainant admitted that he had been absent from work on all of the occasions presented (i.e. in excess of 145 hours during the period from 15^th March, 2015 to 23^rd April, 2016). The Complainant did not offer any mitigating circumstances and apologised for his behaviour.

The Respondent submitted that the Company operates a tight practice on time and attendance. The Company clearly communicates its requirements for staff to be on time and to be present at their workstation throughout their shift. The Company has policies on punctuality and absenteeism in their contracts of employment and handbooks. Disregard for the Company’s policies is described as serious misconduct in the Company’s Disciplinary Procedure. The Respondent submitted that the Complainant would have been fully aware that if he was caught for being out of work on unauthorised absence he could suffer a disciplinary sanction up to and including dismissal.

The Respondent submitted that the Complainant was employed as a Senior Operative which means he had responsibility for supervising staff and was expected to lead by example. Given the amount of absences and the total cost to the company of pay that the Complainant received but did not work for, the Company felt that they had no option but to reach a decision of dismissal. The Complainant was informed of this decision in person on 29^th April, 2016 and a letter confirming this decision was sent to his home address on 5^th May, 2016. The Complainant was paid 6 weeks’ notice in lieu and all outstanding annual leave days were paid in his final salary.

The Complainant was offered the right to appeal, which he did. The appeal hearing took place on 19^th May, 2016. On this occasion the Complainant decided to utilise the Company’s offer of a translator and nominated work colleague to act as a representative/witness. A second meeting took place on 27^th May, 2016 following which a final decision on the matter was reached. The Company met with the Complainant om 27^th June, 2016 to deliver their decision. Following full consideration of the matter and the facts presented, the appeal’s officer decided to uphold the original disciplinary sanction of dismissal.

The Respondent submitted that at the heart of any contract of employment lies the issue of trust. Dishonesty goes to the root of the contract of employment as it serves to undermine the trust and confidence which is essential to the maintenance of the relationship between the employer and the employee. The Respondent submitted that given the Complainant’s position as a Senior Operator, it was reasonable for the Company to expect that he would lead by example and carry out his activities in a trustworthy way.

The Respondent submitted that the Complainant was dismissed following disciplinary action and was afforded all the benefits of fair procedure in line with the Respondent’s established internal policy, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI No. 146/2000) and the universal principle of natural justice. The Complainant was provided with a fair and impartial hearing at which he was given an opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Complainant’s representations and admissions, before any decision was made or action taken. The Complainant was offered the opportunity to appeal the Respondent’s decision.   In light of the above, the Respondent believes that the dismissal of the Complainant was fair in all aspects.

The Respondent submitted that due to the nature of the events leading to dismissal (i.e. a considerable amount of intermittent absences equating to 145 paid hours in the period of 12 months) along with the fact that the Complainant was an experienced operative in a role of responsibility, the Company had no option but to uphold the original disciplinary sanction of dismissal.

In summary, the Respondent submitted that it acted both in a just and reasonable way in all its dealings with the Complainant. The Company is satisfied that all its officers have acted in a reasonable and rational manner throughout the process and in reaching its decision. The Respondent believes that the decision reached was appropriate in the circumstances and that any other reasonable employer would have reached the same conclusion.

The Relevant Law

Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides:

“(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.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The material facts in this case, including the fact of dismissal, were not in dispute between the parties. The Respondent contends that the Complainant was dismissed on the grounds of serious misconduct after it was established that he had engaged in deliberate improper use of the clocking machine over a 12 month period by leaving the work site for extended periods of time without clocking out or seeking permission from his manager. The Complainant does not dispute that he took unauthorised absences from work without clocking out and that his actions in doing so were in breach of the Company’s policy on time clocking procedures. However, the Complainant contends that the penalty of dismissal was disproportionate when all the circumstances of the case are taken into consideration and that a lesser sanction such as demotion or suspension would have been more reasonable given his length of service and previous good work record.

Therefore, the two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are (1) whether the Respondent acted reasonably in dismissing the Complainant and 2) whether the dismissal adhered to the principles fair procedures.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly^[1] where it was held that: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.

9. Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

The circumstances and facts surrounding the events which led to the Complainant’s dismissal were not in dispute between the parties. The Respondent adduced evidence that the Company operates a very tight practice on time and attendance and employees are required to obtain permission from their manager if leaving the premises for private purposes during a work period. The circumstances which gave rise to the Complainant’s dismissal arose in April, 2016 after information came to the Respondent’s attention that the Complainant had been absent from work on a number of occasions while clocked in and without the permission of his manager. The Respondent initiated an investigation into this matter and it subsequently transpired from records on the Company’s electronic time management systems that the Complainant was missing from work on unauthorised absence for a total of 145 hours during the 12 month period preceding April, 2016. The Respondent adduced evidence that the Complainant was paid for this time which equates to €1,994.80 in salary for hours that he had not worked. This information was presented to the Complainant during the investigation process and the Complainant did not dispute the evidence presented to him in relation to the unauthorised absences during working time. The Respondent adduced evidence that following a disciplinary process the decision was taken to dismiss the Complainant for serious misconduct given the level of his unauthorised absences and having regard to the breach in trust and confidence arising from his actions.

In considering whether the sanction of dismissal was reasonable in the circumstances I have taken the following factors into consideration:

• The Company Handbook clearly states that employees are obliged to clock out if they have occasion to leave the plant other than at normal finishing time. The Company’s Disciplinary Policy also clearly states that disciplinary action up to and including dismissal will be taken against an employee for leaving the company premises for private purposes without permission or without clocking off and for unauthorised absence from an employee’s work department.
• The Respondent adduced evidence that all employees, including the Complainant, had attended training during 2013 in relation to the Company’s time recording and clocking obligations and requirements. This training was delivered by the Respondent in response to issues which had arisen in relation to employees taking extended breaks during working time. The Complainant accepted that he had received this training and was fully aware of his obligations in this regard.
• The Complainant was engaged in a position of responsibility as Senior Operative and it was reasonable for the Respondent to expect that he would lead by example and carry out his activities in a trustworthy manner.

I am satisfied that the Complainant was fully aware of his obligations in terms of adherence to the Company’s time recording and clocking requirements and the disciplinary consequences, up to and including the sanction of dismissal, for breaches of these procedures. I cannot accept the Complainant’s contention that the nature of the offences committed by him did not amount to serious misconduct in accordance with the Company’s Disciplinary Policy and that a lesser sanction than dismissal, such as demotion or suspension, would have been more reasonable in the circumstances. I have examined the Company’s Disciplinary Policy and it clearly states that offences such as “Deliberate improper use of the time-clock” and “Any conduct giving rise to reasonable suspicion of deception or dishonesty affecting the company, its employees or customers” fall into the category of serious misconduct and are subject to a sanction of dismissal. I am satisfied that the offences committed by the Complainant clearly fall within the category of serious misconduct especially in light of the fact that the unauthorised absences had been ongoing on a regular basis over a 12 month period with the result that the Complainant had been paid a significant amount of money for time that he had not worked.

Neither can I accept the Complainant’s contention that the Respondent failed to afford any or adequate weight to his personal issues in terms of the sanction which was imposed in relation to the offences in question. In this regard, the Complainant adduced evidence that he was under enormous stress due to personal issues at the material time, namely that he was separated from his partner and young child and was having difficulties with property which he owned in the Philippines at the material time. Having regard to the evidence adduced, I am satisfied that the Respondent had been a very fair employer in terms of its interactions with the Complainant during his period of employment and I note that he had previously been accommodated by management by putting an arrangement in place whereby he could take time off from work to collect his child. I am satisfied that the issues in relation to the Complainant’s personal difficulties only came to light when they were raised as mitigating factors by him for the unauthorised absences during the investigation/disciplinary process. It is clear that the Complainant did not raise these personal difficulties with management at the material time of taking the unauthorised absences or that he had sought any accommodations or assistance from the Respondent to deal with these matters. I accept the Respondent’s evidence that all relevant factors in terms of mitigation, including the Complainant’s personal circumstances, were taken into consideration during the investigation/disciplinary process and prior to making the decision to apply the sanction of dismissal.

The Complainant also contends that the Respondent’s approach to the imposition of disciplinary sanctions has been applied in an inconsistent manner and reference was made to other employees who had breached time management procedures by regularly taking excessive breaks during shifts. The Respondent did not dispute that difficulties had arisen in relation to employees taking excessive breaks and as a result all employees, including the Complainant, were provided with additional training on procedures and obligations in relation to the taking of breaks during shifts. I accept the Respondent’s evidence that the particular issues which arose in relation to the Complainant in terms of his numerous unauthorised absences from the work site without permission over a sustained period was a totally different and more serious offence than that of certain employees taking excessive breaks during shifts. I am satisfied that the actions of the Complainant in relation to his unauthorised absences from the work site without prior permission amounted to serious misconduct which, in accordance with the Respondent’s Disciplinary Policy, was punishable with a disciplinary sanction of dismissal.

Having regard to the foregoing, and having regard to the serious nature and gravity of the offences which had been committed over a sustained period by the Complainant, I find that the actions of the Respondent in terms of the sanction of dismissal were within the range of reasonable responses open to it and that substantial grounds did exist to justify his dismissal.

The next issue which I must consider relates to the procedural fairness or otherwise of the Complainant’s dismissal. The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000^[2] sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures, which include that:

1. the details of the allegations or complaints be put to the employee concerned;
2. the employee concerned be given the opportunity to respond fully to any such allegations or complaints;
3. the employee concerned is given the opportunity to avail of representation; and
4. the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

In considering this matter, I am satisfied that the Respondent had an established Grievance and Disciplinary Policy in place which conforms to the general principles and procedures enunciated in the Code of Practice.

I have carefully considered the manner in which the investigation and disciplinary procedures were applied in the present case and I am satisfied that the Complainant was given advance notice of meetings, was advised of the seriousness of the matters being investigated, was afforded the opportunity to attend an investigation meeting and separate disciplinary hearings, was offered representation and the services of a translator at all meetings and had all allegations put to him and was given the opportunity to respond to them. I am also satisfied that the details of the alleged serious misconduct were clearly articulated to the Complainant from the outset and that he was fully aware of the nature of the investigation that was being conducted and that the Respondent was treating the matter with the utmost seriousness. The Complainant was also afforded an appeal process which was conducted by an appeal’s officer who had no involvement in the initial investigation, disciplinary hearing and was not party to the decision to dismiss him.

I find, therefore, that the manner in which the Respondent conducted the investigation, disciplinary hearings and appeal did in fact comply with fair procedures and natural justice. In the circumstances, I find that the Complainant was not unfairly dismissed by the Respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts is not well founded.

I find that the Complainant was not unfairly dismissed by the Respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim is not well founded.

Unfair Dismissals Act – Serious misconduct – Unauthorised absences from work site - Fair procedures – Complaint not upheld