Complainant

Respondent

Anonymised Parties

A Process Operator

A Food Processing Company

Representatives

 Solicitors

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-00015640-001

07/11/2017

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

CA-00015640-002

07/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00015640-003

07/11/2017

The Complainant, who is a Polish national, was employed by the Respondent as a Process Operator from 7 November, 2011 until 26 May, 2017 when he was dismissed from his employment on the grounds of gross misconduct.

The Complainant claims that he was unfairly dismissed from his employment. The Respondent disputes the claim of unfair dismissal and contends that the Complainant’s employment was terminated by reason of gross misconduct.

The Complainant claims that he did not receive his statutory notice entitlements contrary to Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by the Respondent. The Respondent disputes the claim under the Minimum Notice and Terms of Employment Act 1973 and contends that the Complainant was not entitled to statutory notice given that his dismissal arose as a result of gross misconduct.

The Complainant also claims that he was discriminated against by the Respondent on the grounds of race contrary to Sections 6(2)(h) of the Employment Equality Acts in relation to his conditions of employment. The Respondent disputes the claim of discrimination.

CA-00015640-001 - Complaint under the Unfair Dismissals Acts

The Complainant submitted that by letter dated 10 May, 2017, he was invited to an investigation/disciplinary hearing in relation to alleged misuse of the Respondent’s clocking system. The letter did not set out the precise allegations being made against the Complainant. While the letter did say that the Complainant had the right to be “accompanied during the meeting” it did not refer to a right of representation.

An investigation meeting took place on 16 May, 2017 and the minutes record that a Mr. W was present at the Complainant’s request as an “employee representative” but the minutes do not appear to reflect any active representation. The Complainant asked if other people’s clocking of the machines was going to be looked at. He was told that his and one other employee’s machines were being looked at, but the Respondent could not speak to what additional investigations the company was doing.

A further meeting took place on 19 May, 2017 with the view to investigating four particular alleged misuses of the clocking system which was not communicated to the Complainant in advance. The investigation concluded that the matter should be forwarded for disciplinary hearing. Pending the disciplinary process, the Complainant was suspended from his employment and the minutes do not record any discussion with him as to the necessity for the suspension and the reason recorded is “the possibility that this behaviour could be repeated”.

By letter dated 19 May, 2017 the Complainant was invited to attend a disciplinary hearing on 23 May, 2017. The letter indicated that disciplinary sanction may include a sanction up to termination of employment. Similar to the investigation letter it referred to the right to be “accompanied” during the meeting. A copy of the disciplinary procedures was furnished to the Complainant at this stage. At no stage did he receive the CCTV policy or Data Protection policy.

A disciplinary meeting took place on 23 May, 2017 and during this meeting the Complainant stated that somebody may have changed the clocking times. Mr. P (Supply Chain Manager), who was conducting the hearing, stated that supervisors and Mr. M (Production Manager) would have had access to the machines. The Complainant also pointed out that he had been paid correctly, thus asking - How could this have happened if the clocking system had not been altered? Mr. P stated that if someone forgot to clock out then the supervisor would update the machine as to the time that they should have clocked out at. The Complainant’s “representative” is recorded in the minutes as stating, “the supervisors are fixing the times”.

By letter dated 24 May, 2017 Mr. P informed the Complainant that the reason he would have been paid correctly was because the machine reflected that his clocking was generally correct, except for when seen on CCTV conducting half clocks. The Complainant submitted that it is unclear what additional information Mr. P acquired in order to make this assertion. He is not recorded as having spoken to anybody and no additional statements were provided to the Complainant.

At a follow up meeting on 24 May, 2017, Mr. P said that he viewed two pieces of CCTV footage. The Complainant requested permission that he be allowed to view it too but Mr. P reserved his decision on that request. Mr. P did not come back to the Complainant on this request.

By letter dated 26 May, 2017, the Complainant was dismissed from his employment on the grounds of gross misconduct. Mr. P stated that the behaviour amounted to gross misconduct warranting summary dismissal. The letter explained that dismissal was effective immediately and no payment would be received in lieu of notice.

By letter dated 31 May, 2017, the Complainant appealed against the decision to dismiss him. He explained that he believed the documents to have been falsified and that it did not make sense that his payslips were correct where they were linked to the clocking system. The Complainant also asserts that he was not shown CCTV footage as he had initially requested. He also requested a copy of the CCTV policy.

By letter dated 6 June, 2017, the Complainant’s appeal letter was acknowledged and he was invited to an appeal meeting on 12 June, 2017. This letter stated that the Complainant would not be provided with copies of the CCTV but that he would be shown copies of it at the meeting. The Complainant does not have minutes of that meeting, but by letter dated 22 June, 2017 his appeal was dismissed. The Complainant submits that there appears to have been no investigation whatsoever into his belief that the clocking machine may have been altered.  

The Complainant submits that his dismissal was unfair for the following reasons:

·       He was not informed that he had a right of representation during the investigation and disciplinary process. Those letters inform him of the right to be accompanied. It was only at the appeal stage that he was told of the right to be accompanied by a representative.

·       He does not appear to have been actually represented during the various meetings notwithstanding the presence of Mr. W at the meeting as an employee representative.

·       He was wrongly suspended from his employment following the disciplinary process. The Complainant referred to the case of Bank of Ireland -v- Reilly [2015 ELR 229] where the High Court held that a suspension ought not to be undertaken lightly and only after full consideration of the necessity for it.

·       It is unknown who made the initial allegation against the Complainant and thus he was never afforded the opportunity to “face his accuser” and to consider whether he wished to cross-examine him/her.

·       The Respondent appears to have investigated two people in relation clocking of the machines. It is unclear whether other people were investigated and/or subjected to disciplinary sanction.

·       In circumstances where the issue of misuse of the clocking system was not properly investigated, it is impossible to say how widespread the alleged misuse was. Consequentially, it cannot be said that the treatment of the Complainant was fair vis a viz his fellow employees.

·       He sought to see the CCTV footage after the disciplinary process, but he was dismissed without having seen said footage and without a reason for the refusal to see it. He was not even told prior to the dismissal letter that his request had been refused.

·       Contrary to the disciplinary policy the Complainant was never given the opportunity to explain any “mitigating circumstances”.

·       The findings against him do not constitute a “dismissible offence” as per the Respondent’s Disciplinary Policy.

·       The decision to dismiss for a finding of gross misconduct is disproportionate. There is nothing to suggest that a lesser sanction was seriously considered. This is corroborated by the fact that the Respondent never sought to allow him to put forward any mitigating circumstances on his behalf. It is noted in this respect that had he been properly represented during the process, this is something that a representative would obviously have done so on his behalf.

·       He understands that other individuals received only a warning as a sanction following a similar disciplinary process. Another fellow Polish employee was dismissed for the same reason on the same day as the Complainant.

CA-00015640-002 - Complaint under the Minimum Notice and Terms of Employment Act 1973    

The Complainant claims that he did not receive his statutory notice entitlements contrary to Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by way of dismissal on 26 May, 2017.      

CA-00015640-003 – Complaint under the Employment Equality Act 1998

The Complainant claims that he was subjected to discrimination on the grounds of his Polish nationality in relation to the manner in which the disciplinary process was conducted and the sanction which was imposed on him for the alleged misuse of the clocking system and taking extended breaks in the workplace.

The Complainant contends that two other individuals, namely an Irish national and a Lithuanian national, received only a warning as a sanction following a similar disciplinary process and that both he and a fellow Polish national were dismissed for the same reason.

The Complainant claims that this treatment amounts to discrimination in relation to his conditions of employment on the grounds of his nationality contrary to Section 8(6) of the Employment Equality Acts.

The Complainant relied upon the Labour Court cases ofO’Higgins -v- UCD[1] and Ntoko -v- Citibank[2]in support of hisposition on this issue.

CA-00015640-001 - Complaint under the Unfair Dismissals Acts

The Respondent disputes the claim of unfair dismissal and submits that the Complainant was dismissed on the grounds of gross misconduct for misuse of the clocking system and taking extended breaks in the workplace.

The Respondent submits that arising from an investigation by the Production Manager, Mr. M, in relation to misuse of the clocking system, it was decided to call the Complainant to attend an investigation meeting. The invitation was issued by letter dated 10 May, 2017. The investigation meeting took place subsequent to a meeting on 15 May, 2017 where the Complainant was afforded an opportunity to review CCTV footage and clocking machine records in relation to the matter under investigation.

The investigation hearing itself took place on 16 May, 2017 and the Complainant was asked to clarify a number of specific incidents where he was alleged to have “half clocked” the timeclock machine and took extended breaks during the period from 1 May, 2017 and 7 May, 2017. It was agreed to have a further meeting on 19 May, 2017 where four specific questions with regard to clocking’s and breaks on 1 May, 2017 and 2 May, 2017 were put to the Complainant. The Respondent had obtained information which confirmed that the Complainant had “half clocked” and taken extended breaks on four separate occasions on these dates. The specific questions and responses that were put to the Complainant were as follows:

1.       On 1 May you clocked out at 9:14 and clocked back at 9:44.

a.       Why did you leave the floor at 9:14 and not return until 9:44 when your official break time is 15 minute break?

Complainant Responded: Probably in the toilet longer than usual.

b.       Why also did you half clock at 9:14?

Complainant: I don’t know I forgot.

2.       On 1 May you clocked out at 13:02 and clocked back at 13:52.

a.       Why did you leave the floor for 50 minutes when your official break time is a 30 minute break?

Complainant Responded: I have no idea.

b.       Why also did you half clock at 13:02?

Complainant Responded: I don’t believe this report.

3.       On 2 May you clocked out at 8:39 and cocked back in at 9:06.

a.       Why did you leave the floor for almost a half hour when your official break time is 15 minutes?

Complainant Responded: I needed longer time in the toilet.

b.       Why did you also half clock at 8:39?

Complainant Responded: I cannot remember why I did half clock.

4.      On 2 May later that day you clocked out at 15:37 and clocked back in at 16:06 which is a 28 minute break when your official break time is 15 minutes.

a.       Why did you half clock at 15:37?

               Complainant Responded: I don’t know.

The Production Manager was not satisfied with the Complainant’s explanations in relation to this matter and decided that there was enough evidence based on the facts presented during the investigation to conclude that he had engaged in misuse of the clocking system in collaboration with another work colleague and had taken extended breaks beyond the official break times.

Subsequent to this investigation, the Production Manager issued a letter to the Complainant on 19 May, 2017 inviting him to attend a disciplinary meeting in relation to concerns regarding misuse of the Company’s cocking system. The Complainant was informed in this letter that the purpose of the meeting was to decide whether to issue him with disciplinary action up to and including the termination of his employment. The Complainant was informed that he had the right to be accompanied at the disciplinary meeting and was provided with copies of the Company’s Disciplinary Policy and Companion Guidelines.

A disciplinary meeting which was conducted by the Supply Chain Manager, Mr. P, was held on 23 May, 2017. A further meeting was held on 24 May, 2017 to clarify certain points that were raised by the Complainant.

The Respondent submits that the investigation meeting and disciplinary hearing were arranged to discuss allegations that the Complainant had misused the time clocking machine and took extended breaks above the allotted time provided by the company. The allegations against the Complainant concerned serious matters and the Respondent did not find his explanations satisfactory. It was held that the Complainant had breached the Company rules on proper clocking procedures and break times and had gained monetarily by virtue of having being paid for time he had not worked.

The Respondent submits that having considered the evidence and the Complainant’s responses in relation to the allegations that his actions constituted gross misconduct and warranted his summary dismissal for a breach of trust and confidence. The Complainant was informed of his dismissal in writing by Mr. P on 26 May, 2017.

The Complainant exercised his right of appeal and an appeal hearing was held on 20 June, 2017. After due consideration, Mr. G, General Manager, who heard the appeal issued a letter to the Complainant on 22 June, 2017 upholding management’s decision to dismiss him for misuse of the Clocking System and the taking of extended breaks in the workplace.

The Respondent made the following points in response to the Complainant’s contention that the disciplinary process was procedurally flawed:

·       The Disciplinary process was carried out in accordance with the Company’s established Disciplinary Policy which was made available to the Complainant prior to the commencement of the process. The disciplinary process was conducted in accordance with fair procedures and natural justice.

·       The Complainant was afforded the right to be accompanied by a work colleague or a Staff Representative Group Member during all stages of the disciplinary process in accordance with the Company’s Companion Guidelines. The Complainant was represented at all stages of the process by his work colleague, Mr. W, who was a member of the Company’s Staff Representative Group with previous experience of representing workers in disciplinary proceeding and had undertaken relevant training in this area.

·       The Complainant was made fully aware of the nature of the allegations which were being investigated during the disciplinary process and was afforded the opportunity to view the CCTV footage and clocking machine records in question prior to the commencement of the disciplinary process.

·       The sanction of dismissal was proportionate having regard to all the circumstances of the case. In this regard, the Respondent took into consideration that the Complainant had gained monetarily from his misuse of the clocking system, that abuse of the clocking system constitutes gross misconduct in accordance with the Company’s Disciplinary Policy and is subject to a sanction of summary dismissal and the Complainant had breached the trust and confidence in the employment relationship.

·       The Complainant was informed during the disciplinary process that the Respondent was treating the matter with the utmost of seriousness and that he could be subjected to disciplinary action up to and including dismissal. The Complainant was afforded every opportunity to put forward any plausible explanations or mitigating circumstances in relation to his misuse of the clocking system but failed to do so.

·       The Respondent disputes the Complainant’s contention that the Company applied an inconsistent approach in terms of the disciplinary sanction imposed on other employees who were also found guilty of misuse of the clocking system. The Respondent submits that the Complainant and another employee were dismissed on the grounds of gross misconduct for misuse of the clocking system at that juncture and that it was clear there was collaboration between both of these employees in relation to this matter. The Respondent accepts that three other employees were also implicated in the investigation which had been conducted by the Company in relation to misuse of the clocking system. However, it was held following an investigation that two of these employees were only involved in “passing by activity” which was a less serious breach of the clocking policy and had not obtained any personal or monetary gain from actions. One of the three employees resigned when confronted in relation to the matter. The other two employees admitted to the breaches and had shown remorse when confronted and therefore a sanction of a final written warning was deemed appropriate in the circumstances.

CA-00015640-002 - Complaint under the Minimum Notice and Terms of Employment Act 1973    

The Respondent disputes the claim under the Minimum Notice and Terms of Employment Act 1973 and contends that the Complainant was not entitled to statutory notice on the basis that his employment was terminated by reason of gross misconduct.

CA-00015640-003 – Complaint under the Employment Equality Act 1998

The Respondent denies the claim that the Complainant was subjected to discrimination in relation to his conditions of employment on the grounds of his Polish nationality in relation to the manner in which the disciplinary process was conducted and the sanction imposed on him for the alleged misuse of the clocking system and taking extended breaks in the workplace.

The Respondent submits that the Complainant and another employee of Polish nationality were dismissed on the grounds of gross misconduct for misuse of the clocking system and that it was clear there was collaboration between both of these employees in relation to this matter. The Respondent accepts that three other employees, being of Polish, Irish and Lithuanian nationality, were also implicated in the investigation which had been conducted by the Company in relation to misuse of the clocking system. However, it was held following an investigation that two of these employees, namely the Lithuanian and Irish nationals, were only involved in “passing by activity” which was a less serious breach of the clocking policy and had not obtained any personal or monetary gain from actions. The other Polish employee resigned when confronted in relation to the matter. The Irish national and the Lithuanian national admitted to the breaches and had shown remorse when confronted and therefore a sanction of a final written warning was deemed appropriate in the circumstances.

CA-00015640-001 - Complaint under the Unfair Dismissals Acts

The 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 fact of dismissal was not in dispute between the parties. However, the circumstances and the reason which resulted in this dismissal were very much in dispute between the parties. The Respondent contends that the Complainant was dismissed on the grounds of gross misconduct after it was established that he had engaged in deliberate misuse of the clocking machine and took extended breaks above the allocated time on a number of occasions during the period from 1 May, 2017 to 7 May, 2017. The Respondent contends that it carried out a thorough investigation and disciplinary process in relation to this matter which fully complied with fair procedures and natural justice.

The Complainant denies the allegation of gross misconduct and disputes the Respondent’s contention that he had engaged in misuse of the clocking system and/or that he had taken extended breaks during the material period of time in question. The Complainant contends that the disciplinary process was totally flawed and that he was denied fair procedures in relation to the manner in which this process was conducted by the Respondent. The Complainant claims that his dismissal was both substantively and procedurally unfair.

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[3] 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.

39. I respectfully agree with the views expressed by Judge Linnane in 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.”

In the instant case, the Respondent adduced evidence that the Company operates a very strict policy in relation to compliance by its employees with the rules governing its clocking system and that employees are fully aware that breaches of these rules are treated with the utmost seriousness. The circumstances which gave rise to the Complainant’s dismissal arose in May, 2017 after information came to the attention of the Respondent’s Production Manager to indicate that the Complainant and a number of other employees had been engaging in misuse of the clocking system and had been taking extended breaks in the workplace.

I am satisfied that the Respondent initiated a thorough investigation into this matter and that it subsequently transpired when records from the Company’s electronic clocking system were compared against CCTV footage that there was sufficient evidence for management to reasonably conclude that the Complainant had engaged in misuse of the clocking system during the period from 1 May, 2017 to 7 May, 2017. I am satisfied that the relevant information, including the clocking system records and an opportunity to view the CCTV footage for the material dates in questtion, was afforded to the Complainant during the investigation process and that he was afforded all reasonable opportunities to explain the discrepancies.

I note that the Complainant disputes that he had engaged in misuse of the clocking system and claimed during the disciplinary process that the clocking records had been falsified or manipulated by the management to his detriment. I have found the Respondent’s evidence on this issue to be more compelling and credible and I find that it was not unreasonable for the Respondent to conclude based on the unsatisfactory nature of the Complainant’s explanations that he had deliberately engaged in misuse of the clocking system in collaboration with another employee and had taken excessive breaks during the material period in question. 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 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 gross misconduct in accordance with the Company’s Disciplinary Policy and that a lesser sanction than dismissal would have been more reasonable in the circumstances. I have examined the Company’s Disciplinary Policy and it clearly states that offences such as “Providing false information to a company representative or falsifying any company record, such as employment applications, C.V. or resumes, signing sheets, time clocking machines, timesheets ….” fall into the category of gross 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 gross misconduct and accordingly, that the sanction of dismissal was not disproportionate in the circumstances of the present case.

The Complainant also contends that the Respondent’s approach to the imposition of disciplinary sanctions was applied in an inconsistent manner and reference was made to other employees who had also breached the clocking procedures at the material time in question. The Respondent adduced evidence that there was a total of five employees, including the Complainant, implicated in the investigation that had been conducted in relation to alleged misuse of the clocking system. The Respondent submits that the Complainant and another employee were dismissed on the grounds of gross misconduct for misuse of the clocking system as it was clear there was collaboration between both of these employees in relation to this matter, that they had failed to admit to the breaches of the policy when confronted with the evidence or show any remorse therefor.

By contrast, the Respondent held following an investigation that the three other employees were only involved in “passing by activity” which was deemed a less serious breach of the clocking policy and they had not obtained any personal or monetary gain from their actions. One of the three employees resigned when confronted in relation to the matter. The other two employees admitted to the breaches and had shown remorse when confronted, and therefore, a sanction of a final written warning was deemed appropriate in the circumstances.

Having regard to the evidence adduced, I cannot concur with the Complainant’s contention that the Respondent’s approach to the imposition of disciplinary sanctions was applied in an inconsistent manner. I am satisfied that the circumstances surrounding the disciplinary sanctions imposed on the other three employees can be distinguished from the situation which pertained in relation to the Complainant. I accept the Respondent’s evidence that the breach in procedures by these three employees was less serious is nature, that they had admitted to the breaches when confronted and had not obtained any personal or monetary gain from their actions.

In all the circumstances of this case, I find that the actions of the Respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the Complainant’s 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[4] 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 process was conducted in the present case and I cannot accept the Complainant’s contention that the process was totally flawed and lacking in fair procedures.

I note that the Complainant contends that he was not informed of his right to representation, was wrongly suspended, wasn’t afforded an opportunity to view the CCTV footage after the disciplinary process and wasn’t afforded an opportunity to explain any mitigating circumstances.

On the issue of representation, I am satisfied that the Complainant was informed by the Respondent that he had the right to be “accompanied” at all stages of the process. In this regard, the Respondent’s “Companion Guidelines” (which forms part of its Disciplinary Policy) was made available to the Complainant at the outset of the process and these guidelines clearly indicate that an employee is entitled to be represented during a disciplinary process by a work colleague or a member of the Staff Representative Group. I am satisfied that the Complainant was, in fact, represented during all stages of the disciplinary process by Mr. W, who was an experienced member of the Staff Representative Group and had relevant training and previous experience in this area. I therefore, do not accept the Complainant’s contention that he was not afforded the right to representation during the disciplinary process.

On the issue of the CCTV footage, I am satisfied that the Complainant was afforded the opportunity by the Respondent to view all relevant recordings at the investigation stage of the process. It was not in dispute that the Complainant requested to view the CCTV footage again during the disciplinary hearing, but this request was not granted. Whilst I accept that it was remiss of the Respondent not to accede to the subsequent request to view the CCTV footage, I am satisfied that the Complainant had already been afforded the opportunity to view the relevant CCTV footage and that no prejudice arose in terms of his ability to put forward his defense to the allegations of gross misconduct. In the circumstances, I am satisfied that the Respondent’s failure in this regard is not sufficient, in isolation, so as to render the disciplinary process unfair.

On the issue of mitigation, I am satisfied that the Complainant was given an opportunity at each stage to challenge the allegations against him and present any mitigating circumstances. However, it is clear that the Complainant maintained the position throughout the disciplinary process that he had not committed any wrongdoing despite the conclusive evidence presented by the Respondent to suggest otherwise.

Having regard to the totality of the evidence adduced, 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 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 gross 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.

CA-00015640-002 - Complaint under the Minimum Notice and Terms of Employment Act 1973    

Section 8 of the Minimum Notice and Terms of Employment Act, 1973 state as follows:

“8.Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

Having found that the Respondent acted reasonably in all of the circumstances of the case in dismissing the Complainant for gross misconduct and in accordance with Section 8 of the Act, I do not find that the Complainant is entitled to be paid statutory notice as claimed.

CA-00015640-003 – Complaint under the Employment Equality Act 1998

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.   If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant.   It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”. Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”.

The issue for consideration by me is whether or not the Complainant was subjected to discriminatory treatment on the grounds of race in relation to his conditions of employment in terms of the manner in which the disciplinary process was conducted and the sanction which was imposed upon him.

In considering this issue, I note that it was not in dispute that there was a total of five employees implicated in the investigation which the Respondent conducted in relation the misuse of the clocking system. It was also common case that the Complainant and a fellow Polish national were ultimately dismissed following a disciplinary process whereas an Irish national and a Lithuanian national were subjected to a lesser sanction of a final written warning. In the circumstances, I am satisfied that these facts are sufficient to raise an inference of less favourable treatment on the grounds of the Complainant’s Polish nationality in relation to the nature of the disciplinary sanctions imposed arising from the disciplinary process. Accordingly, the onus shifts to the Respondent to rebut the inference so raised.

It is important to note that the Respondent employs a significant number of employees and that approx. 70% of which are Polish nationals. The Respondent adduced compelling evidence that the Complainant and another employee, of Polish nationality, were dismissed on the grounds of gross misconduct for misuse of the clocking system as it was clear there was collaboration between both of these employees in relation to this matter, that they had failed to admit to the breaches of the policy when confronted with the evidence or show any remorse therefor.

The Respondent also adduced compelling evidence that the other three employees implicated in the investigation were held to have committed a less serious breach of the clocking policy and they had not obtained any personal or monetary gain from their actions. One of the three employees resigned when confronted in relation to the matter. The other two employees admitted to the breaches and had shown remorse when confronted, and therefore, a sanction of a final written warning was deemed appropriate in the circumstances.

Having regard to the evidence adduced, I accept the Respondent’s evidence that the nationality of the employees concerned, including the Complainant, did not have any bearing whatsoever in relation to the manner in which the disciplinary process was conducted and the nature of the sanctions imposed on conclusion of the process. In the circumstances, I find that the nature of the disciplinary sanction imposed upon the Complainant was not in any way connected to his nationality but rather it was wholly attributable to the fact that he was found to have committed an act of gross misconduct in the workplace. I therefore find that the Respondent has succeeded in rebutting the inference of discrimination on the grounds of the Complainant’s nationality. Accordingly, I find in favour of the Respondent in relation to this complaint.

CA-00015640-001 - Complaint under the Unfair Dismissals Acts

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.

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.

CA-00015640-002 - Complaint under the Minimum Notice and Terms of Employment Act 1973

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Respondent has not contravened the provisions of Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 in relation to the Complainant. Accordingly, I find that the complaint is not well founded.

CA-00015640-003 – Complaint under the Employment Equality Act 1998

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I find that the Complainant has established facts which are sufficient to raise an inference of discrimination on the grounds of race contrary to Section 8(6) of the Act and that the Responded has succeeded in rebutting the inference so raised. Accordingly, I find in favour of the Respondent in relation to this complaint.

Unfair Dismissals Act 1977 – Summary Dismissal – Gross Misconduct – Minimum Notice and Terms of Employment Act 1973 – Dismissed without statutory notice – Employment Equality Act 1998 – Discrimination – Race Ground - Conditions of Employment – Prima Facie Case – Respondent Rebuts Inference