Complainant

Respondent

Anonymised Parties

A General Operative

A Food Preparation Company

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-00016101-001

01/12/2017

The case concerns an alleged Unfair Dismissal of a General Operative by a Food Preparation Company.

The Complainant is a National of Moldova.  He returned to Moldova on the 20th July 2017 to attend his mother- in- law’s funeral. He texted this fact to the Company on the 17th July. On his return to Ireland on the 9th August he discovered that disciplinary hearings had taken place in his absence -the 26th July and the 28th July.  He was informed that his employment had ceased on the 17th July and he received his P45 in the post. His solicitor contacted the Respondent employer seeking details of these meetings and information regarding a possible Appeal. No reply was ever received.

The actions of the Respondent were a complete denial of Natural Justice, the Complaint was never afforded the opportunity to present his side of the story and all the requirements of Si 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures were completely ignored.

There were substantial grounds justifying this Dismissal – the Complainant had a major track record of repeated failures to attend work and numerous instances of not observing proper notification procedures in these situations.

The Dismissal in August 2017 was for a wilful and deliberate failure to comply with the correct attendance procedures.

During the period from year 2002 to 2009 there were repeated instances of non-attendance which culminated in the ending of the employment in June 2009. The Complainant approached the Company again in 2011, expressed his regret and requested reemployment. Manger Mr. XA took him back on the 12th September 2011 on the clear understanding that there would be no further Disciplinary or Attendance issues. However, regrettably, by November 2013, the Complainant was issued with a Verbal Warning for Attendance and again on the 23rd May 2016 a further Verbal Warning was given for numerous absences during early 2016. The Verbal Warning emphasised the need to observe and correctly follow attendance procedures.

A Verbal Warning was again given on the 26th January followed by a Written Warning for breaches of Attendance procedures on the 13th June 2017. The issue of the complete unacceptability of using Text Messages to Managers (to notify non- attendances) was emphasised.

None the less on the 17th July the Complainant texted his Manager at 05.38 hrs to inform his Manager that he, the Complainant was “flying at 07:00” that morning and “to cover him”. The Manager made telephone attempts to contact the Complainant but to no avail. The Respondent issued a series of letters, by hand delivery, to the Complainant’s home address on the 18th, 20th and 24th July 2017. He was informed of a Disciplinary hearing on the 28th July which he did not attend. In his absence he was formally Dismissed from his employment by letter of the 1st August 2017. An Appeal was offered but not availed of.

There was no contact with the Respondent until a letter was received from his Solicitors on the 13th September 2017. Numerous exchanges of correspondence followed but essentially to no avail.

In Oral evidence the Manager Mr. XA expressed his severe disappointment with the Complainant. Quite a lot of further material emerged in Oral evidence regarding the whereabouts of the Complainant on the 17th,18th and 19th of July and reasons for his non- contacting his employer during this period. This material substantially reinforced the Respondent’ position.

3:1       The Law

The Unfair Dismissals Act 1977, SI 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures and considerable EAT and Legal precedents.

The key question in this case, I felt, was whether or not the Dismissal which took place while the Complainant was in absentia in Moldova were thereby rendered null and void.

In theory SI 146 of 2000 would leave only one answer to this question. However, when the case is considered in the context of all its evidence, especially the oral testimony of the Complainant, a more considered view must be taken.

Consideration must be given to seminal cases such as Looney and Co ltd v Looney UD843/1984 and Allied Irish banks Plc v Brian Purcell [2012] 23 ELR 189. In this case Linnae J gave the view

“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 view but to ask was it reasonable open to the Respondent to make the decision it made rather than necessarily the one the EAT or the Court would have made”.

 Regarding Procedures the case of Elia Erian Aziz v the Midland Health board [1995] ELR 48 is useful. Here it was stated by the Circuit Court that

“(3) While a disciplinary body exercising quasi-judicial functions is bound to adopt fair procedures, a bona fide defect in the procedures adopted is not necessarily fatal to the legality of the ultimate decision made.

(4) Where a defect in the procedure adopted or in the conduct of the proceedings is alleged, the applicant in order to succeed must first establish that the complaint is well founded and that the defect complained of raises a reasonable possibility that an injustice may have been done.

(5) Accordingly, where there is no reasonable possibility that an injustice may have been done to the person under investigation as a result of the defect complained of, the decision is lawful and has the same effect as it would have had if no such defect had been found.”

This basic procedural commentary /point is also found in Pacelli v Irish Distillers (Ud 571/2001). Here it is stated that and quoting from an earlier decision that the Tribunal should not

“parse and construe rules of procedure in a narrow way and unreal way, looking for some failure in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed.”

Accordingly, and in summary the legal Precedents basically require that a case be looked at in its overall context, reviewing all the evidence before coming to a decision. A Procedural issue or shortfall can be outweighed by clear evidence of serious matters authored by one of the Parties.

3:2      The Evidence in this case both Oral and Written

The Oral evidence of the Complainant was a critical factor in this case. It was not denied that the Complainant had received Verbal Warnings and as late as 13th June a Written Warning regarding his attendance and his alleged breach of Respondent attendance procedures. He was fully aware of these matters.

In his verbal evidence the Complainant stated that on the 17th July he had texted his Manager at 5:38 in the morning to inform him that he, the Complainant, would not be in work as he was “flying at 7:00 hrs “.

The evidence continued that the Complainant suffered a mechanical failure in his car and missed his flight on the 17th. He returned home to Naas and it appeared that he did not actually fly to Moldova until the 20th July -two full days later. During this period, he made no contact whatsoever with the Respondent. This was despite receiving a letter by courier on the 18th July requesting him to make contact.

It appeared that the Complainant basically ignored the Respondent and was unable to provide the Adjudication Hearing with a satisfactory explanation for his non-contact other than the fact that he “was stressed out”. The reason for the absence to Moldova was to attend his Mother-in Law’s funeral.

On his return to Ireland on the 9th August he did not make formal contact with the Respondent until his Solicitor’s letter of the 13th September 2017.

The Complainant was unable to offer any satisfactory explanations for this lack of contact with the Respondent. He was well aware of the Company rules and Procedures in this area having been by Verbal and Written Warning informed of them. His return to the Company in September of 2011 had also clearly focused on this area. The Manager concerned Mr. XA gave oral evidence on this point.

The Complainant simply had no credible explanation for his non-contact with his Employer, particularly in the period 17th to 20th July when it was accepted that he was in Ireland.

In what appeared to me that with a degree of frustration the Respondent proceed with Disciplinary Hearings with the Complainant in abstentia. The Dismissal was confirmed by letter of the 1st August 2017.

The key question then is that one raised by the Complainant’s Legal Advisor -how could these procedures be fair or in keeping with natural Justice in the Complainant’s absence.? How was this Dismissal fair?

To answer this requires as stated above looking at the Overall context and the “Band of reasonableness” argument -would a “reasonable Employer” have come to the Dismissal decision?  Legal precedents as far back as British Leyland UK v Swift [1981] IRLR 91, 93 paras 11 where Lord Denning first coined the expression the “Band of Reasonableness” can be cited in support.

In the case in hand the overwhelming evidence was that the Complainant was very well aware of the consequences of non-contact with his employer, of the inappropriateness (and breach of procedures) of using text Messages to his Superior and effectively “going to ground” over the days from the 17th to the 20th July. The key issue was that this type of behaviour was not a new territory to the Complainant -he had been repeatedly warned about the consequences. His effectively conditional return to the Company in 2011 being a telling point here.

In this context the Respondent view that this was “gross misconduct” warranting a Dismissal is one that I felt falls well within the “Band of Reasonableness” for an employer in this Industry.

To address the Complainants Legal Advisor question regarding SI 146 of 2000 and Natural Justice concerns I had to bear in mind the Legal precedents quoted above at Section 3:1 and in particular Pacelli v Irish Distillers (UD 571/2001) where it was stated that it was not the role of the EAT (or latterly an Adjudicator)

“to parse and construe rules of procedure in a narrow way and unreal way, looking for some failure in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed.”

In this case correct procedures were followed by the Respondent employer. An Appeal was offered to the Dismissal decision. It could have been availed of immediately on the Complainant’s return in August rather than waiting until early September to have his Solicitor make contact.

While it could possibly be surmised (although there was no direct evidence to this fact) that the Respondent knew the Complainant was not in Ireland when writing to him in late July the Complainant’s complete non- communication clearly outweighed any suggested failings on the Respondent’ part. The plain fact was that the Complainant knew what he was doing and the likely employment consequences.

3:3      Summary and Conclusions.

Taking all the evidence, both oral and written, into account I came to the view that this was not an Unfair Dismissal and the claim has to fail.

Act

Complaint/Dispute Reference No.

Summary decision /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-00016101-001

Unfair Dismissal claim is rejected.