Complainant

Respondent

Anonymised Parties

A Welder/Fabricator

A Global Manufacturing Company

Representatives

Cathy McGrady B.L. instructed by Denis McSweeney Solicitors

Peter McInnes, McInnes Dunne Solicitors

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-00015881-001

20/11/2017

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

CA-00015881-002

20/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00015881-003

20/11/2017

The complainant was employed by his previous employer as a Welder/Fabricator since 2005 and subsequently by the respondent following a transfer of undertakings in April 2015. The complainant contends that he was unfairly dismissed by the respondent on 26th July 2017 a decision which was confirmed to him by letter dated 26th of September 2017 received by the complainant on 7th of October 2017 following an appeal by the complainant. The parties furnished written submissions at the adjudication hearing.  Further information was sought from the parties post hearing and the final date for receipt of additional correspondence was 24th of August 2018.

The respondent stated that the dismissal of the complainant was not unfair. The respondent contends that its business is subject to peaks and troughs and in an attempt to avoid layoffs, short time or redundancies, the Site Operations Manager met with all staff individually in May 2017 to agree alternative work practices. The respondent submits that in order to ensure continued employment for all of its staff and the viability of the Kells site and to avoid lay-offs, short time or redundancies, the Respondent sought to increase existing alternative work practices including the following:

(a) Travel within Ireland, primarily to the company’s site in Fermoy and a client site in Raheen, Co. Limerick, and abroad to client or other company sites, primarily in the USA and Switzerland;

(b) Spot EP;

(c) Fine Polishing;

(d) Site Service Day Trips;

(e) Overtime when required.

During the course of May 2017, Mr. F, Site Operations Manager, met with all employees individually, including the Complainant, on a one to one basis to discuss the above and ask what level of flexibility each employee was willing/able to offer in respect of the above matters. Mr. F met the Complainant on two occasions in May. The Respondent offered employees a range of incentives in return for agreement to take on some or all of the above tasks including training, a travel allowance, accommodation and mileage. The Complainant declined to offer the assistance sought from him.

By the end of May 2017, the majority of the Respondent’s employees in Kells had demonstrated the flexibility asked of them by the Respondent, and either expressed in, or implied by necessity into, their contracts of employment, to respond to the needs of the business, agreed to make some contribution towards securing the viability of the site by agreeing to undertake, or increase their involvement in, one or more of the above activities. A small number of employees (6 in total including the Complainant) refused to agree to undertake any of the above activities.

Following further discussions in June 2017, a number of additional employees agreed to undertake one or more of above activities, leaving only 3 employees who continued to refuse to offer any degree of flexibility, the Complainant and two others.

The respondent stated that the complainant claimed it was “not possible” for him to commit to travel without explaining why other than by referring to his terms and conditions of employment.

Following his repeated refusal to travel to other work locations, the Complainant was asked to attend a meeting with Mr. F and Mr. M, Vice President, Global Manufacturing, on 22 June 2017. A copy of the Respondent’s notes of that meeting are submitted.

It is submitted that the complainant, when asked if he was prepared to undertake some amount of travel, said he was not. At the conclusion of the meeting of 22 June 2017, the Complainant was suspended with pay pending a disciplinary hearing into his refusal to make himself available to work on a temporary basis at locations of the respondent group or at client sites in Ireland and/or overseas in circumstances where there was a shortage of work available at the Kells site. A copy of a letter dated 22 June 2017 from the Respondent to the Complainant is also submitted.

A disciplinary hearing in respect of the above matter was held on 27 June 2017. The meeting was chaired by Mr. F. The Complainant attended and was accompanied by a colleague. As can be seen from the notes of the meeting, the Complainant claimed it was “not possible” to travel without explaining why other than by referring to his terms and conditions of employment.

In light of the Complainant’s continuing refusal to offer the flexibility the Respondent was seeking without reasonable excuse, Mr. F decided that the Complainant’s refusal amounted to an unreasonable refusal to obey a lawful instruction and thus constituted misconduct. Mr. F imposed a sanction of two weeks’ unpaid suspension on the Complainant. A copy of Mr. F’s letter confirming the outcome of the disciplinary hearing dated 29 June 2017 was submitted in evidence.

During the disciplinary hearing, the Complainant expressed concerns about the safety of Spot EP (Electro Polishing) and Fine Polishing.   Spot EP is a process which the Respondent had always undertaken to a limited degree. It was, prior to the respondent acquiring the Kells site, a process which was largely outsourced. Following the acquisition, and in order to maximise available work, the respondent brought a greater amount of Spot EP back on site.

It is accepted by the Respondent that, like any part of the manufacturing process, Spot EP can be hazardous if employees are not properly trained and do not use the appropriate Personal Protective Equipment. The process involves the use of acid to remove a layer of metal from the vessels manufactured by the Respondent to remove impurities and obtain a finished product of high quality, as required by the Respondent’s clients. It is accepted that the Complainant was not trained in Spot EP. Training was offered. There is nothing inherently dangerous about the process provided all necessary health and safety precautions are taken. It defies logic to suggest that the Respondent would expose any employee to health and safety risks such as those claimed by the Complainant.

Fine Polishing is a process where an employee uses a hand-held machine to remove small flaws in a vessel. Again, the Respondent offered training in this process, which is not inherently dangerous.

The Complainant was afforded a right of appeal against Mr. F’s decision and he exercised that right by letter of 6 July 2017, which request was followed by an exchange of correspondence between the parties dated 13 July 2017.

An appeal hearing took place on 19 July 2017. Mr. L, CFO of the respondent , who is based in the US, heard the appeal. Medical documentation was submitted by the Complainant.   The Complainant’s appeal was not upheld.   As can be seen from the notes of the meeting, the Complainant refused to travel, stating that it was “not possible” without elaboration. While it is accepted the Complainant raised (in the view of the Respondent unfounded) health concerns regarding Spot EP and Fine Polishing, it is noteworthy that the Complainant also said it was not an area he “would like to go into” and that it would constitute “a change to his terms and conditions”.

The Complainant also complained about the presence of Mr. F at the appeal hearing. That complaint is without merit. Mr. F was present for the purpose of taking notes and answering any questions asked of him. He was not present as a decision maker. That function was solely reserved to Mr. L.

Following the conclusion of the appeal, the Complainant was asked to, and did, attend a meeting with Mr. F on 24 July 2017. At this meeting, Mr. F made it very clear that, if the Complainant did not offer some degree of flexibility in relation to the points in dispute, matters would escalate and termination of his employment would be considered. Mr. F went to great lengths to reach some accommodation with the Complainant. At the conclusion of the meeting, Mr. F afforded the complainant a further period of 24 hours to consider matters.

A further meeting was held with the Complainant on 26 July 2017. It is clear from the notes of the meeting that the potential consequences of a continued refusal were clearly highlighted to the Complainant. At the meeting of 26 July 2017, in light of the fact that the Complainant offered no further commitment to undertake any of the additional duties, Mr. F made the decision to terminate his employment on the basis of his continuing unreasonable refusal to comply with a lawful instruction. That decision was confirmed by way of letter of 2 August 2017.

The Complainant was afforded the opportunity of appealing Mr. F’s decision and exercised that right. The Complainant submitted a detailed appeal by way of letter of 10 August 2017. By letter of 22 August 2017, the appeal hearing was arranged and the Complainant was furnished with minutes of previous meetings.  

An appeal hearing was convened by the Respondent and was heard on 29 August 2017. The appeal hearing was heard by Mr. M, Global Director of Quality, who is based in the US. By letter of 26 September 2017, the appeal was dismissed.

The Respondent disputes the claim of unfair dismissal and asserts that there were substantial grounds justifying the termination of the Complainant’s contract of employment. The Respondent further asserts that the dismissal was reasonable in all the circumstances. The Respondent submits that it cannot seriously be suggested that the sanction of dismissal, in all of the circumstances, was outside of the “band of reasonable responses” in response to the persistent refusal by the Complainant to consider undertaking alternative work practices, unlike the vast majority of his colleagues.

It is a long established and accepted principle of Irish law that an employee may be disciplined, up to and including dismissal, for refusing to comply with a reasonable and lawful order, or to carry out a reasonable and lawful task, for his/her employer.

The Complainant refused to undertake Spot EP (Electro Polishing) and Fine Polishing and he stated that this was due to his concerns relating to health and safety.   The respondent stated that the complainant’s health and safety concerns were confirmed by way of a letter from the complainant’s GP. The respondent stated that he medical evidence submitted by the Complainant was not disregarded but added that the account of what Spot EP involves given to the Complainant’s GP, presumably by the Complainant, is inaccurate. The respondent stated that the process is not necessarily carried out in confined spaces, as the GP reports. It can be carried out in any number of ways. The Respondent was aware of the Complainant’s knee problem and had taken steps to ensure this issue was not exacerbated in his work as a fabricator/welder.

The respondent’s representative cited the cases of Brewster v Burke and the Minister for Labour [1985] 4JISLL 98, Harrington v Irish Life and Permanent PLC (unreported 18 June 2003) and Berber v Dunnes Stores Ltd [2009 IESC10] in support of its position.

In Brewster v Burke and the Minister for Labour [1985] 4JISLL 98, the High Court

(Hamilton J as he then was) pointed out that –

“It has long been part of our law that a person repudiates the contract of service if he wilfully disobeys the lawful and reasonable instructions of his master. Such a refusal justifies an employer in dismissing an employee summarily”.

In the instant case, it is submitted that the requests made of the Complainant by the Respondent were both lawful and reasonable. The Respondent submits that it was clearly entitled to respond to the downturn of work it experienced at the Kells site by asking its employees to undertake new work practices which would keep them employed and secure the viability of the site where the alternative was the possibility of lay-offs, short time or redundancy.

The Respondent submits that it did not seek to impose unreasonable demands on any employee. It entered into a process of dialogue with all of its employees to ascertain who could undertake travel, Spot EP etc. Bar the Complainant and two others, all employees made some commitment to the Respondent to undertake one, or more, of these tasks. Quite apart from the direct impact of the Complainant’s refusal on the Respondent, it was also unfair on their colleagues who had demonstrated the necessary level of commitment.

The Respondent accepts that it would have been unreasonable of it to simply impose alternative responsibilities on employees without dialogue and without regard for personal circumstances. It did not do so. It sought to work with employees, taking into account personal circumstances, offered financial reward and appropriate training.

Viewed against the foregoing, the persistent refusal of the Complainant to offer any meaningful commitment to the Respondent, his failure to have regard for his obligation of flexibility, his repeated reliance upon unspecified safety concerns, and a dogmatic reliance on what he perceived as his terms and conditions of employment, was unreasonable and must, it is submitted, amount to conduct such as that envisaged in the Brewster v Burke case and subsequent decisions.

It is submitted that the Respondent would have been entitled to dismiss the Complainant following his original refusals. However, it did not do so. Over a period of 3 months (May – July 2017), it engaged in a process with the Complainant, which process was designed to encourage the Complainant to offer the commitment sought while at the same time making clear the potential consequences of persistent refusal.

The respondent submits that the role of the Adjudication Officer is not to substitute his/her views on the for that of the employer but to establish whether or not the decision to dismiss is “within the band of reasonable responses” available to the employer. In support of this contention, the respondent cited a number of Court cases including the case of the Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229. The respondent contends that its decision to dismiss is within the band of reasonable responses available to it in the specific circumstances of this complaint.

The complainant stated that he was unfairly dismissed by the respondent on 26 July 2017 without notice and with immediate effect. The complainant submits that this decision was confirmed by letter dated 26th of September 2017 received by the complainant on 7th of October 2017 following an appeal by the complainant

The complainant had commenced employment as a Steel Fabricator and Welder in May 1988.   The complainant at the time of his dismissal had 29 years continuous service with the Respondent as his employment transferred to them in April 2015 pursuant to the Transfer of Undertakings Regulations.   The complainant states that he has had an impeccable work record and has never been the subject of any disciplinary action whatsoever.

The complainant wears a hard knee brace following an accident in the workplace in May 2012 and he also suffers from hearing loss.

The complainant has worked under express terms and conditions which transferred to the respondent. These terms include a statement that his place of work is Oldcastle Road Kells Couny Meath. He had never before been required to travel in the course of his work and for 29 years carried out his duties at the Kells site.

When his employment transferred to the respondent he was issued with correspondence dated 14th of April 2015 confirming that there would be no changes to his working conditions in particular pgh 6 stated:

“You will continue to work at your current location and no material changes will occur to your day to day duties as a result of the transfer of your employment to (the named respondent)”

In addition, at the time a number of concerns were raised by employees and it was confirmed to them that

“ Commitments have been made that current employees will be exempt from site work unless they put their names forward for site work”.

It is submitted that all of the evidence establishes that the complainant was employed as a Fabricator/Welder and that his contractual place pf work was Kells and that there was no mobility clause in his contract and he had not been required to travel for the past 29 years. It is also submitted that he was given assurances at the time of the Transfer in Undertakings there would be no requirement to do so without his consent.

All of this was disregarded by the respondent in June and July 2017 when he was disciplined and subsequently dismissed by the respondent for refusing to travel.

The complainant told the hearing that following the TUPE he was on two occasions asked in an informal manner and in passing to attend other sites for extended periods of time, up to two weeks in Limerick and Cork and in the USA and Switzerland.

The complainant submits that due to his personal circumstances he was unable to spend extended periods away from home.

The complainant told the hearing that these were informal conversations which had taken place between the complainant and Mr. F and amounted to an enquiry as to the Complainant’s availability for travel to which the complainant submits that he responded with an explanation that he was not available for overnight travel due to family commitments. The complainant submits that there was no indication prior to 22 June of any requirement in this regard.

The complainant told the hearing that he was instructed on 22 June 2017 to attend a meeting with Mr. F Site Operations Manager.   Also, in attendance at this meeting was Mr. M Vice President of the company’s Global Manufacturing. The Complainant had been called to this meeting without reason or prior notice and was not informed that he could be accompanied or represented at the meeting.

During that meeting the complainant was suspended with pay without any good reason

It is submitted that there were numerous breaches of fair procedures in the disciplinary process which culminated in the termination of his employment.     The complainant stated that he was suspended with pay on 22/06/2017 for no legitimate reason and subsequently suspended without pay on 27 June 2017 as an apparent sanction following a disciplinary procedure.

Following an unsuccessful appeal of the sanction of his unpaid suspension, the complainant was requested to attend two further meetings (24/07/2017 and 26/07/2017).

The complainant was informed that his employment was terminated on 26/07/2017 with immediate effect, receiving written notice of termination 03/08/2017.

The complainant submitted an appeal of the sanction of dismissal on 10/08/2017. This appeal was heard on 29/08/2017.   The complainant was informed of the outcome of the appeal by registered post on 07/10/2017.

The complainant submits that the termination of his employment is unfair and unlawful within the meaning of the Unfair Dismissals Act 1977-2007, that there was no substantial reason to justify the termination of employment, and that the company behaved unreasonably throughout the disciplinary process and there was no misconduct on the part of the complainant.

The complainant stated that he was called to a meeting on 22nd June 2017 in relation to the respondent’s requirement for him to agree to alternative work practices. The complainant stated that he was not aware that he could be accompanied to or represented at the meeting. The complainant stated that he received a letter on 26th June 2017 notifying him of a disciplinary meeting to be held on 27th June 2017. The letter stated:

“That you have, without reasonable excuse or explanation, refused to comply with a lawful and reasonable management instruction, to make yourself available to work on a temporary basis at locations of the [Respondent name] group or at client sites in Ireland and/or overseas in circumstances where there is a shortage of available work at the [complainant’s work location] site. The above allegation potentially constitutes gross misconduct.”

The complainant stated that the allegations of the respondent were untrue as he had never refused to work at alternative locations within the country but was unable to stay away from home overnight due to personal circumstances of which the employer was aware. The complainant stated that he was not allowed to have Union representation at the meetings despite the existence of a company union agreement and the provisions of S.I. 146 of 2000 (Code of Practice on Grievance and Disciplinary Procedures.) The complainant stated that having previously been told he was not required to do Spot EP, it was raised again at the disciplinary meeting despite the complainant’s GP having concerns in relation to his health in carrying out that task. The complainant stated that Spot EP and Fine Polishing are specialised roles and not within his skill set or part of his established terms and conditions of employment. He stated that he was willing to do overtime when he is available.

The complainant stated that the Site Operations Manager Mr. F was present at the initial meeting on 22nd June 2017, conducted the disciplinary meeting on 27th June 2017 and despite supposedly being at the appeal meeting on 24th July 2017 as a note taker, was actively involved throughout. The complainant stated that the involvement of the Site Operations Manager at all levels of the process denied him fair procedures.

The complainant stated that following the meeting of 22nd of June 2017 his appeal was unsuccessful, and the sanction of two weeks’ unpaid suspension was upheld. The complainant stated that when his period of suspension ended he was returned to a period of paid suspension and when a return to work meeting was scheduled for the 26th July 2017, he was summarily dismissed at that meeting.

The complainant confirmed that he appealed the dismissal and again the Site Operations Manager Mr. F was present at the appeal hearing which was held on the 29th of August 2017. The complainant stated that despite his presence as a note taker at the appeal, the Site Operations Manager was actively questioning him as he had done previously and throughout the process.

The complainant stated that the actions of management were totally unreasonable. The complainant contends that at the time of the transfer of undertakings in April 2015, he was issued with a letter that stated:

“No social or economic implications are envisaged in relation to you because of your transfer of employment. You will continue to work at your current location and no material changes will occur to your day to day duties because of the transfer of your employment to [respondent name].”

The complainant stated that in his case the respondent attempted to introduce unilateral changes to his established terms and conditions of employment and that when he did not agree to the changes for varying reasons he was summarily dismissed. The complainant is seeking the maximum compensation payable under the Unfair Dismissals Acts in relation to his complaint.

The complainant’s representative submitted the following cases in support of the complaint; Bank of Ireland v Reilly [2015] 26 ELR 229, Morgan v Trinity College [2004] 15 E.L.R. 235, DHL Express (Ireland) Ltd. v M. Coughlan UDD1738, KM Enterprise v Farnan UD 847/2012, Lyons v Longford Westmeath ETB, Red and Write Shop v Hennessy UD 192/1978 and Adjudication Officers Decisions No’s ADJ-00003465, ADJ-00004909 and ADJ-00006985

Unfair Dismissal

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

(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.

The complainant was subject to a disciplinary process and subsequently dismissed for an allegation that “potentially constitutes gross misconduct.” The respondent disciplinary procedures provide that in cases of gross misconduct Clauses 1-4 of its disciplinary process (Counselling, Verbal Warning, Written Warning and Final Written Warning) may be bypassed and employees may be suspended with pay pending a thorough investigation and may be subject to summary dismissal. The disciplinary procedures provide examples of such behaviour including violence, theft, wilful damage, sexual harassment, bullying, attending work under the influence of alcohol and other issues that result in breaches of trust.

Contract of employment

The complainant stated that it was confirmed in writing at the time of the transfer of his employment to the respondent that there would be no material changes to his day to day functions within the organisation. The complainant relies heavily on this in relation to his complaint and states that he is unable to co-operate with the required changes for a number of reasons such as personal circumstances, health reasons, availability and/or safety concerns.

The respondent in referring to the letter of 14 April 2015 regarding the transfer of the complainant’s employment to the Respondent in 2015 submits that it is unrealistic of the complainant to seek to rely on that correspondence some two years later following the transfer given the changed and difficult economic circumstances in which the Respondent’s business found itself in 2017.

The respondent has stated that it sought to increase alternative work practices in order to save jobs and avoid lay offs.   These practices include

(a) Travel within Ireland, primarily to the company’s site in Fermoy and a client site in Raheen, Co. Limerick, and abroad to client or other company sites, primarily in the USA and Switzerland;

(b) Spot EP;

(c) Fine Polishing;

(d) Site Service Day Trips;

(e) Overtime when required.

The respondent advised the hearing that it had had secured agreement from the majority of the staff in relation to alternative work practices which it stated would secure continued employment for all at the site without the need for layoffs, short time or redundancies. The complainant was one of a very small minority of employees who did not agree on any of the additional duties requested of him.

The respondent submits that the complainant refused to provide any flexibility in relation to these work practices stating that they were contrary to his terms and conditions.     The respondent states that all other employees apart from the complainant and two others had provided some flexibility and willingness to partake in these work practices but that the complainant refused to do.  

The complainant when asked about travel within and outside of Ireland repeatedly responded that it was not possible for him travel where it involved being away overnight.   The complainant later stated that this was due to his personal circumstances that he could not be away overnight.

The respondent submit that the complainant also refused to take on Spot Ep and Fine Polishing stating that this refusal was due to concerns for his health due to his knee injury and due to hearing problems.   In addition, the complainant stated that he had concerns with the way Fine Polishing was carried out after witnessing another member of staff carrying it out without protective clothing.

The respondent submits that the complainant’s continuous refusals to carry out any of these alternative work practices or to provide any flexibility in this regard amounted to ‘gross misconduct’ following which he was summarily dismissed.

Gross Misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

In all of the circumstances of this complaint, I do not accept that the complainant’s actions constituted gross misconduct which ultimately led to his summary dismissal. The disciplinary process concluded that the complainant’s behaviour constituted misconduct, yet he was summarily dismissed which, under the respondent’s procedures is the sanction that applies to gross misconduct.

The complainant at the hearing stated that he could not be away overnight for personal reasons however the respondent submits that throughout the disciplinary process he did not provide any reason for his refusal to stay overnight apart from a statement that it was ‘not possible’. The minutes of the various disciplinary meetings support this claim.

I note that the complainant did state that he was unable to carry out Spot EP due to health reasons and produced a letter from his GP stating that he would be unable to carry out Spot EP as it is completed in confined spaces involving a lot of bending and where conditions are slippery underfoot.   The respondent clarified that spot EP does not have to be carried out in a confined space and that the description of Spot EP given to the GP by the complainant was incorrect and that these concerns need not arise and would not be an issue where Spot EP was not carried out in a confined space.   The complainant also stated that he was unable to carry out Fine Polishing due to the level of noise involved and due to the fact that he already suffered from hearing problems. The respondent at the hearing stated that they had brought in specialists to monitor noise levels during Fine Polishing and that there were no concerns in respect of noise generation. The complainant in response to this stated that the noise was not as loud on the day it was being monitored.   The complainant also raised concerns in respect of having witnessed a trainer carrying out Fine Polishing without protective clothing.   The respondent in reply to this stated that this person was not a trainer but that it had been brought to their attention that this person was carrying out polishing without protective clothing and that they immediately took steps to rectify this instructing him to put on a Protective mask and clothing.   The respondent stated that the complainant and other staff had been reassured that they would receive training and protective equipment in order to carry out Spot EP or Fine Polishing but that the complainant despite these undertakings refused to offer any flexibility in this regard.     The complainant also stated that he was aware of individuals who had in the past suffered from burns and injuries following these processes. The complainant did not provide any particulars in respect of such assertions.

Band of reasonable responses.

As to whether there were substantial grounds for the Complainant’s summary dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

“It is thus clear 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.”

Having considered the matter very carefully, I find that the decision to summarily dismiss the complainant was not within the range of reasonable responses of a reasonable employer. The sanction of summary dismissal was not appropriate or reasonable in circumstances where the disciplinary process had found that the complainant’s behaviour constituted misconduct. There were four other possible stages of the disciplinary procedures that could have been applied yet the sanction imposed was that which the respondent applies to gross misconduct.

In addition I note that the respondent in this case advised the hearing that they sought to diversify when work was scarce in order to avoid redundancies and risk losing the expertise of their workforce so it was not prepared to make the complainant redundant for fear of losing his expertise so instead dismissed him for his failure to diversify into the new work areas thus losing his expertise in any event.

I also note that there was no mobility clause in the complainant’s contract and that he had never in his previous 29 years of work with the company been required to work at a different location other than the location stated in his contract.

I note that the that the respondent has stated that diversification was necessary for economic reasons. The complainant has stated that the respondent provided no evidence to support the claim that this diversification was necessary for economic reasons but it is clear that the respondent would not be seeking employees to move to different areas of work if there was enough work in the areas in which they had been working.   The respondent has also stated that they were willing to provide compensations and incentives to take on travel and diversify and I cannot see that this would make economic sense unless it was necessary to send employees to such locations. In addition, the complainant in this case refused to offer any flexibility in terms of travelling to the Fermoy plant and staying overnight.

The complainant submits that he agreed to do two of the five matters when they were raised with him at the disciplinary meeting. He states that he had agreed to do site service day trips and Overtime. The respondent has characterised the complainant’s response to their requests as a refusal to undertake any of the five elements of diversification. It is clear from the evidence adduced that the complainant’s agreement to overtime and site visits were agreed to on the basis that he would have to return home each night if working at a different site and when doing overtime as he could not be away over-night.   The respondent advised the hearing that this did not meet its requirements where for example a site visit required more than one day’s work this meant that the complainant would have to return home that night and set off to the site again the next day. In this regard the respondent submits that the complainant was not genuinely offering flexibility in respect of site visits and overtime as offers were constrained by the need to return home each night.

I am satisfied that the complainant in this case did contribute in part to his own dismissal by failing to offer a reasonable level of flexibility when he was requested to do so by his employer in spite of the fact that other employees had provided such flexibility.   However, I am also cognisant of the fact that he was not notified that a refusal to provide such flexibility could lead to his dismissal and I note that the respondent moved to discipline the complainant without exploring the options with the complainant and without considering other possible lesser sanctions.   I also note however that the complainant following his suspension was given an opportunity at the meeting of 24th of July 2017 to change his position in respect to the flexibility he was willing to provide in respect of the five issues.   At a further meeting of the 26th of July 2017 the complainant confirmed that his position remained the same i.ie that he it was not possible for him to travel overnight and that he would not carry out Spot EP or fine Polishing due to health and Safety concerns. I note that he was asked why he could not do overnight travel and he stated that it was due to personal reasons which he did not elaborate on but stated he would provide detail on at a later stage. I note that the respondent at this meeting asked if he would be willing to undertake spot EP and Fine Polishing if he was provided with the correct safety equipment and training to carry out this role. The complainant responded by stating that this was not an area he wished to go into.     I find that the complainant in his responses to the respondent did display a level of inflexibility to even consider carrying out these roles even when the respondent undertook to allay his safety concerns and provide him with training and protective equipment.   In addition, I note that the complainant failed to elaborate on his reasons for his inability to stay away from home overnight.   I also note that the complainant continuously referred to the fact that these requirements did not form part of his terms and conditions.

Disciplinary process

The complainant during the disciplinary process raised objections to the participation of Mr. F Site Operations Manager at all stages of the process. He was told in response to this objection that Mr. F was only present as a note taker not as a decision maker in this part of the process. The complainant stated that Mr. F actively took part in all stages of the process.

I am satisfied from the evidence adduced that Mr. F was involved throughout the process, from the initial suspension with pay, right through to the investigation and disciplinary processes and again at the appeals of the disciplinary sanction and subsequent dismissal. I accept that this involvement tainted the process and in the view of the complainant denied him the principles of fair procedures and natural justice.                                                                                                          

The Labour Court in Joseph Brennan Bakeries v Rogers UDD1821 considered a disciplinary process in that case as follows:

“Finally, the Court considers that the multiplicity of roles undertaken by TG in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw that procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that the within enterprise is of a nature which afforded the respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by selection of available management level personnel to carry out the different stages of the procedure.

In the instant case I find it entirely reasonable of the complainant to consider the process as unfair given the constant presence of the Site Operations Manager at all levels of the process.

Mitigation of Loss

The complainant at the hearing submitted a booklet of his job applications and responses to those applications. It is clear from this booklet that the complainant devoted a substantial amount of time to applying for jobs and in upskilling himself as he also completed an ECDL course and a Safe Pass course.   The complainant advised the hearing that he had sought to mitigate his loss and had applied for numerous jobs (55 in all) but that he had been unsuccessful in all of these applications which he attributes to his age as he was almost 60 at the time of his dismissal.

Protected disclosure

This allegation was raised at the hearing of the complaint and did not form part of the original complaint to the Commission.   The complainant submitted that his dismissal took place as a result of a Protected Disclosure.   It is submitted that this Protected Disclosure related to the complainant’s reaction to being asked to undertake Spot EP and Fine Polishing.   The complainant in response to these requests stated that he would not undertake these tasks due to safety concerns and due to the fact that he states that the trainer carried out this Fine Polishing without wearing protective clothing. The respondent at the hearing clarified that this individual was not the trainer but stated that in any event the matter of his failure to wear protective clothing or a mask was at the time raised with him and he was instructed to wear a mask and protective clothing once they became aware or the incident.   There was no indication that the respondent had asked the complainant or any employee to undertake Fine Polishing without protective equipment.   In addition, the complainant has submitted that he was subjected to an unfair dismissal after he refused to perform certain tasks which were contrary to his terms and conditions and which were introduced by the respondent he submits that two other colleagues were dismissed in similar circumstances where they refused to carry out these tasks.     I note that the disciplinary process had already been commenced by the respondent before the complainant made his allegations in respect of Fine Polishing and Spot EP. I also note that the complainant raised concerns in relation to Spot EP which were related to his own unrelated injury and to injuries which he asserts others sustained when carrying out Spot EP and or Fine Polishing.   These assertions referred to generalities and the complainant did not provide any specifics in relation to these assertions.     It is acknowledged by both parties that Spot EP and fine Polishing are activities which have been carried out by other employees of the respondent but which prior to the TUPE the majority of Spot EP and Fine Polishing had been carried out at other sites. The respondent advised the hearing that it welcomes the raising of Health and Safety issues by employees as it wants to ensure that all employees carry out their role in accordance with Health and Safety procedures and regulations and to ensure that no employee puts themselves or others at risk and the respondent refers to this as ‘stepping up’.   The respondent added that the complainant and any other employee who was asked to carry out Spot EP or Fine Polishing would have to undergo appropriate training and wear protective equipment when carrying out this task. In addition, I note that the suggestion of a protected disclosure having been made was only raised by the complainant post hearing and was not referred to in the original claim form or at the hearing of the claim.

I am satisfied from the totality of the evidence adduced in relation to this matter that he complainant’s dismissal was not ‘wholly or mainly’ due to a protected disclosure of a legal wrong and that this complaint is unfounded.         This allegation did not form part of the original complaint submitted to the Commission.  

Conclusions

In all of the circumstances of this case, I find that the complainant was subjected to an unfair dismissal both substantively and procedurally given that the Site Operations Manager was overly involved in all aspects of the disciplinary process.

In addition, the complainant was summarily dismissed which, under the disciplinary procedures is a sanction appropriate to gross misconduct yet the disciplinary process concluded that his behaviour constituted misconduct.     In those circumstances I find that the sanction of summary dismissal was disproportionate to the matter at hand.

Having considered the totality of the evidence adduced in respect of this complaint, I find that the dismissal of the complainant was both substantively and procedurally unfair. The respondent is directed to pay the complainant €23, 000 in compensation for his unfair dismissal.

Having considered the totality of the evidence adduced in respect of this complaint, I find that the dismissal of the complainant was both substantively and procedurally unfair. The respondent is directed to pay the complainant €23, 000 in compensation for his unfair dismissal

The complainant was employed by his previous employer as a Welder/Fabricator since 2005 and subsequently by the respondent following a transfer of undertakings in April 2015. The complainant contends that he was unfairly dismissed by the respondent on 26th July 2017 a decision which was confirmed by letter dated 26th of September 2017 received by the complainant on 7th of October 2017 following an appeal by the complainant. The parties furnished written submissions at the adjudication hearing. Further information was sought from the parties post hearing and the final date for receipt of additional correspondence was 24th of August 2018.

The complainant submitted a claim in respect of a the respondent’s failure to pay him a Redundancy Payment.

The complainant advised the hearing that this claim was in the alternative to a finding of Unfair Dismissal.

The respondent submits that no redundancy situation arose and that this claim is unfounded.

The complainant submitted a claim in respect of a failure to pay him a Redundancy Payment.

The complainant advised the hearing that this claim in respect of a failure to pay him a Redundancy Payment was in the alternative to a finding of Unfair Dismissal.

I have found above that the complainant was subjected to an Unfair Dismissal following his refusal to diversify into other areas of work and accordingly I find that his claim in respect of a Redundancy Payment fails.

I have found above that the complainant was subjected to an Unfair Dismissal following his refusal to diversify into other areas of work and accordingly I find that his claim in respect of a Redundancy Payment fails.

The complainant was employed by his previous employer as a Welder/Fabricator since 2005 and subsequently by the respondent following a transfer of undertakings in April 2015. The complainant contends that he was unfairly dismissed by the respondent on 26th July 2017 a decision which was confirmed by letter dated 26th of September 2017 received by the complainant on 7th of October 2017 following an appeal by the complainant. The parties furnished written submissions at the adjudication hearing. Further information was sought from the parties post hearing and the final date for receipt of additional correspondence was 24th of August 2018.

The complainant submitted that he was summarily dismissed without notice or payment in lieu of notice.

The respondent at the hearing of the claim conceded the claim in respect of minimum notice.  

The complainant submitted that he was summarily dismissed without notice or payment in lieu of notice. The complainant submits that he was entitled to eight weeks’ notice given his length of service with the respondent. The respondent at the hearing of the claim conceded the claim in respect of minimum notice.  

I have found above that the complainants dismissal amounted to an Unfair dismissal. In addition, the respondent in this case has conceded the minimum notice claim.     Accordingly, based on the totality of the matters and the evidence adduced I am satisfied that the complainant is entitled to 8 weeks payment in lieu of notice.

I find that this complaint is well founded and that the complainant is entitled to 8 weeks’ pay in lieu of notice.

I find that this complaint is well founded, and that the complainant is entitled to 8 weeks pay in lieu of notice. The respondent is directed to pay the complainant the equivalent of eight weeks pay in lieu of notice.