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-00019719-001

12/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00019719-002

12/06/2018

The issues in contention concern the appropriateness and reasonableness of an Unfair Dismissal penalty imposed on the Complainant and a follow-on claim for Minimum Notice.

1:1       Unfair Dismissals Claim -CA -00019719-001

The Unfair Dismissal claim was not contested as regards the actual facts and the investigations that followed a series of alleged clocking incidents. The Complainant had apologised in full to the Respondent for the incidents. He was an employee of very good standing with almost 13 years unblemished service. The sanction of Dismissal from Employment was outside the bounds of reasonableness and was unwarranted. The Respondent failed to consider other disciplinary options short of dismissal.

1:2       Minimum Notice Claim – CA 00019719-002

As the Complainant was dismissed for gross Misconduct no notice was paid. Should the UD Act,1977 claim above succeed then a Minimum notice claim would also succeed.

2:1       Unfair Dismissals Claim -CA -00019719-001

The basic facts of the case were not disputed. Full details were given a detailed Investigation, Disciplinary and Appeals process. SI 146 of 2000 - Code of Practice on Grievance and Disciplinary Procedures was scrupulously followed.

The offences involved and the manner in which they took place completely undermined the bond of trust between an employer and an employee. It could not be described as anything other than Gross Misconduct. Accordingly, having carefully considered the available options the penalty of dismissal was the only appropriate response.

2:2       Minimum Notice Claim – CA 00019719-002

As the Dismissal was for Gross misconduct the question of Minimum Notice does not arise.

3:1       Unfair Dismissals Claim -CA -00019719-001

3:1:1       The Law – The Unfair Dismissal Act, 1977; SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures and the Precepts of Natural Justice. The issue of Proportionality and the Band of Reasonableness in Employer decisions.

Statute Law in the UD Act of 1977 Section 6 states and attention is drawn to sub section b below.

(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.

Accordingly, dismissal for misconduct is therefore possible.

However, a key legal issue then arises as to the fairness of procedures and whether the rights of the employee were respected in keeping with Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 Flood J. 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.

2.

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.

3.

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

4.

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.

5.

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.”

SI 46 of 2000 – Statutory code of Conduct on Grievance and DisciplinaryProcedures effectively translates Mr. Justice Flood’s observations into customary practice.

Accordingly, having reviewed all the evidence, the extensive paperwork and meeting minutes supplied I came to the view that the Procedures followed had been proper and in keeping with Natural Justice.

The question them moved, as per Point 5 of Mr. J Flood above, to the issue of Proportionality and the “Band of Reasonableness” of the Respondent Employer decision.

3:2     The Role of the Adjudicator; The Band of Reasonableness and the issue of Proportionality.

There is extensive legal Authority regarding the Principle that the Tribunal or the Adjudicator is not to substitute themselves for the Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

       “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

Considering the Penalty of Dismissal imposed when seen against the charges made against him I had to have regard to the principles of “reasonableness”. It is not for the Adjudicator to revisit the Penalty but rather to see if it falls within the “band of reasonableness.”.

This was first set out in the headline case British Leyland UK Ltd v Swift [1981] IRLR 91. This case has been followed closely in subsequent case law. In essence it made the point that if a Dismissal decision is “Reasonable” and one which an employer in a similar situation might take then it is deemed to be fair provided of course that all requirements of Natural Justice have been observed.

In Allied Irish Banks plc v Purcell [2012] ELR 189 Judge Linnane stated that

“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 employer’s 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.”

Guidelines as to what is “Reasonable” is considered in Hennessy v Read & Write Shop Ltd UD 192/1978 where it is stated

“in deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to

1: The nature and extent of the enquiry carried out by the Respondent prior to the decision to dismiss the claimant, and

2: The conclusion arrived at by the Respondent that, on the basis of the information resulting from such an enquiry, the claimant should be dismissed.

However Legal Precedents not withstanding each case has to be seen on its own merits.

3:3     Conclusions from the evidence both Oral and Written

A number of conclusions must be drawn.

Firstly, there was a full Investigation and a proper Disciplinary Process. There were no obvious procedural flaws in the process.

Secondly, the Complainant did not deny the offences.

Thirdly, breaches in clocking procedures of the manner described such using the back unapproved door to enter and exit the premises were clearly matters of serious consequence to any employer.

In considering the Band of Reasonableness question I noted that the Respondent had a well laid out and properly communicated staff policy regarding clocking and Time and Attendance issues. An employee of over 12 years’ service could not deny a full knowledge of this procedure & policy.

The question of proportionality of the dismissal was discussed at length during the oral hearing. The issue as to whether or not there were alternative penalties was considered. It appeared to me that the Respondent had a very rigid policy regarding clocking irregularities. This was understandable in a large employer such as the Respondent. Trust in the proper and honest operating of the time Recording system must be a sine qua non between the Employer and the Employees.

However, in mitigation, the Employee in this case had not involve other employees, there was no systematic fraud for personal gain nor any question of any falsification of records for other employees. The material financial losses to the Respondent were minimal. The Complainant was clearly being stressed by a serious domestic situation at home in Lithuania which quite possibly made him act rashly while at work. He had an employment record of over 12 years’ service without serious incident.

In the evidence given by the Dismissing Manager and the Appeals Manger it was apparent to me that they were unduly wedded to the rigidity of the Clocking Policy, particularly with an employee of the previous record and length of service of the Complainant. Options other than a final Dismissal for Gross Misconduct did not appear to have been given due weight in the decision making.

Accordingly, having considered all the written evidence and heard the oral evidence, I had to come to the view that the decision to dismiss in this instance was overly harsh and not a proportionate response.

However, the behaviours of the Complainant, who after 12 years completed service, must have been fully aware of the gravity of what he was doing, domestic stress notwithstanding, is far from blameless.

3:4   Conclusions and Decision.

Having considered all the evidence I find that the penalty of Dismissal was Unfair on the grounds of Proportionality.

The Clam is upheld.

3:5     Minimum Notice Claim – CA 00019719-002

As the Dismissal was found to be Unfair the Minimum Notice claim is deemed to be well founded and is upheld.

Act

Complaint/Dispute Reference No.

Summary decision /Please refer to Section 3 above for detailed reasoning.

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

CA-00019719-001

Dismissal deemed to be unfair on Proportionality Grounds.  An Award of Redress of € 1,800 is made

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00019719-002

Claim is well founded. An award of Redress of             € 2,700 is made in favour of the Complainant.

The Taxation of these monetary awards to be considered in conjunction with the Revenue Commissioners.