UDD1871

This is Mr Sebastian Wrobel’s (‘the Complainant’) appeal of an Adjudication Officer’s decision (ADJ-00002221, dated 1 September 2016) under the Unfair Dismissals Act 1977 (‘the Act’). The Complainant's Notice of Appeal was received by the Court on 3 October 2016. The Court heard the appeal in Sligo on 2 October 2018. The delay in the matter coming on for hearing was due to a number of adjournments having been granted previously to the Parties.

The Complainant gave evidence on his own behalf. Evidence was adduced from four witnesses on behalf of CG Power Systems Ireland Limited (‘the Respondent’): Mr Patrick O’Hare, Ms Andrea Flanagan, Ms Stephanie Leonard and Mr James McMahon.

Factual Matrix

There is no material dispute between the Parties in relation to the facts of this case. The factual matrix can, therefore, be recited succinctly as follows. The Complainant was employed by the Respondent between 9 August 2004 and 1 December 2015 when he was dismissed on grounds of gross misconduct (albeit with payment in lieu of six weeks’ notice). The Complainant was employed as a Grade 3 General Operative and deployed primarily as a welder. His rate of pay was €741.12 gross per week.

On 10 October 2015 the Complainant was observed sleeping in a cubicle during and beyond his official break during a night shift by Mr Pat O’Hare, Supervisor. Mr O’Hare reported the incident which was then investigated by Ms Andrea Flanagan of the Respondent’s HR Department. At the investigation meeting on 13 October 2015, the Complainant stated he had been suffering from back and shoulder pain caused by his having to handle heavy materials at work. He volunteered that he had initially been taking paracetamol for the pain but had also taken diazepam prescribed for his mother. The Complainant gave Ms Flanagan to believe that he had consulted with his GP prior to taking the diazepam. He also said that he didn’t intend to sleep beyond the duration of his break but that for some reason the alarm on his phone didn’t ring. Ms Flanagan referred the Complainant to the Respondent’s Occupational Health Advisor and advised him that she would make contact, with his permission, with his GP.

On 15 October 2015, the Complainant met with Ms Sandra McCaul, Occupational Health Advisor. He repeated his version of events and gave permission to Ms McCaul to contact his GP. On 19 October 2015, Ms McCaul reported to Ms Flanagan that she had made contact with the Complainant’s GP who had informed her that she had not recommended that he take the diazepam that had been prescribed for his mother. Ms Flanagan completed her report and recommended that matters be progressed to the disciplinary stage as follows: “Due to the fact of lying to the company regarding approval to take medication and being asleep on company time, potentially exaggerated by the danger of potentially being under the influence of non-prescribed drugs on-site I believe this matter needs to be referred for disciplinary hearing.”

That disciplinary hearing took place on 27 November 2015. It was conducted by Ms Stephanie Leonard, Operations Manager. The Complainant was accompanied by his Shop Steward, Mr Jim Cooney. The Complainant told this meeting that it was the GP’s receptionist who had said it would be OK for him to take the diazepam prescribed for his mother. The meeting reconvened on 30 November 2015 to advise the Complainant of the outcome. He was initially verbally informed that he was to be dismissed with immediate effect because falling asleep at work was a fraudulent claim of time, because he had given misleading information to the investigation, and had breached company health and safety guidelines by attending for work under the influence of medication that could induce drowsiness. Cumulatively – he was advised by Ms Leonard – that his actions had undermined the Respondent’s trust and confidence in him and those actions constituted gross misconduct. He was advised of his right of appeal within seven days to the General Manager, Mr James McMahon. A dismissal letter confirming the foregoing issued on the following day, 1 December 2015. That letter also advised the Complainant that he would be paid his six weeks’ notice entitlement.

The Complainant exercised his right of appeal. The appeal meeting with Mr McMahon took place on 11 December 2015. Mr McMahon issued his outcome letter on 15 December in which he upheld the initial decision to dismiss the Complainant.

The Complainant gave evidence and was cross-examined in relation to the events that led to his dismissal and in relation to his subsequent efforts to mitigate his loss. Somewhat surprisingly, he was unable to find alternative work as a welder so therefore decided to set up his own business selling games and software on-line. His evidence is that he earns approximately €250.00 per week.

Discussion and Decision

It is evident to the Court that the Complainant compounded the already unfortunate situation he found himself in by misleading the Respondent during the course of the investigation. Quite simply he lied about his GP’s alleged role in advising him that it was acceptable to take diazepam before attending for work in a safety critical environment. As an experienced welder and an employee with some eleven years’ accrued service with the Respondent, he ought to have known of the risks to himself and to the health and safety of others of so doing. He should not have attempted to lay the blame for that ill-judged decision on somebody else, thereby calling that person’s professional judgement into question. When the veracity of his original story was questioned the Complainant changed his recollection of material facts on a number of occasions. This justifiably, in the Court’s view, compounded the Respondent’s loss of trust and confidence in his integrity and led to the decision to terminate his employment.

It became evident to the Court, in the course of the hearing, that the Respondent’s policies and procedures are deficient in a number of respects. For example, there are material differences in the disciplinary procedures outlined in the Complainant’s written contract of employment and those set out in the Respondent’s Employee Handbook. The Complainant was not issued with a copy of the disciplinary procedure to be followed in his case at the commencement of the investigation. Nevertheless, the Court is satisfied that the process actually followed was not tainted to a degree that renders the dismissal procedurally unfair. The Complainant was fully aware of the issue that prompted the initial investigation. However, he compounded matters himself by telling untruths and changing his version of events throughout the course of the investigation. Full consideration was given to the issues he raised in mitigation, having regard to the level of credibility that could be attached to them. The Complainant was accompanied at all times by his Shop Steward. He received ample opportunity at a face to face meeting with the Respondent’s General Manager to appeal the decision to terminate his employment.

Having considered the Parties’ submissions and the witnesses’ evidence, the Court finds that the Complainant’s dismissal was neither substantively nor procedurally unfair. The Court affirms the decision of the Adjudication Officer.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
20 December, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.