Complainant

Respondent

Anonymised Parties

Driver

Homeless Agency

Representatives

Self-represented

IBEC

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-00010186-001

13/03/2017

The complainant commenced employment as a driver with the respondent through the Community Employment Scheme on 27/7/2015. He works in a high support residential unit for clients with complex needs. He works 19.5 hours per week for which he is paid €210.50 gross.

His hours of work are 10am to 5.00 pm. 3 days a week.

On 26/10/17 he asked to be allowed to leave work early; he stated that he had arrived in work at 9.30 that morning, a half an hour before his scheduled start time. Around 4pm he was requested to collect 2 persons and transport them back to residence A. A dispute broke out on foot of this request between the complainant and his line manager.

He was dismissed on the 1/3/17 due to the incident of the 26/10/17 which was characterised by the respondent as gross misconduct.

He submitted his complaint to the WRC on 13/3/17.

The complainant selected re-instatement as his preferred remedy.

The complainant referred to the events of 26/10/16 which ultimately led to his dismissal.

On 26th October, he arrived into work 30 minutes before his scheduled 10.am start time and advised the person in charge whom he was unable to identify that he planned to leave early that evening instead of his rostered 5.00 pm finishing time. Previously he had obtained the verbal agreement of line managers to change his hours. He stated that he did not know of any formal procedure for changing hours of attendance. He stated that he was asked to drive a van at 5pm, on the day of a bus strike. He stated that he had gotten frustrated at the request. He accepted that he had behaved in an ill-tempered manner. He submitted that he had been flexible on previous occasions changing his start time to facilitate the respondent.

He did attempt to apologise to the line manager on the 28th for his behaviour on the 26th; he drove to her location but as she was not there he left a voice message apologising for his behaviour.

He went to 5-6 counselling sessions to deal with communication difficulties.

The disciplinary process went on for about 5 months. The first phase was an investigative meeting on 15/11/16. He advised the senior manager for emergency services at the investigative meeting on 15/11/16 that he had been attending counselling. He proffered this as proof that he was trying to address the problem. He states that he was not given an adequate opportunity to reply to questions put to him at this investigative meeting.

The complainant submitted a statement to the respondent after receipt of report of the investigative meeting held on the 15/11/16 and in advance of the disciplinary hearing scheduled for 18/1/17. He stated that the descriptions of his behaviour as abusive, disrespectful and hostile are exaggerated. He accepted the respondent’s requirements to work within their values and policies.

He stated that the lack of consideration as to the time it would take to negotiate city traffic and complete the assignment led him to feel frustrated. He disputes the minute which stated that he conveyed no regret or apology and points to minutes of meeting of 15/11/16 which record his efforts to contact the service manager.

The complainant advised that he submitted a letter of appeal against the dismissal on the 1/3/17, the date on which he received notification of the dismissal giving his reasons. The respondent invited him to a meeting. The complainant stated that he had been advised by a public representative from whom he had sought assistance to decline same and to submit a complaint to the WRC.

The respondent provides a service to vulnerable adults.

In August 2016, some discussions took place between the claimant and other members of the team in an informal way encouraging the complainant to engage in a friendly manner and to show reasonable flexibility in relation to hours of attendance.

In September 2016, the complainant advised the service manager that staff requests for him to drive after 4pm may mean that due to traffic congestion he may not finish until after 5pm. The respondent emailed staff asking them to be mindful of his finishing time and his entitlement to 30 minutes’ lunch break

This incident which led to his dismissal occurred on 26/10/17 in the residence of and within earshot of these vulnerable adults. At approximately 15.50 the complainant was asked to drive from residence A to residence B to collect a volunteer and a resident and bring them back to residence A. It is a return journey of approx. 4 km. He made the journey. The persons whom he had been assigned to collect were not outside of residence B when he arrived so he returned to residence A at about 16.25 without making a call to establish if there was a change in the arrangements. There was a Bluetooth handset in the van. The intended passengers rang residence A and a support worker asked the complainant to drive back to residence B at 16.25 pm. It is the respondent’s case that the complainant became very agitated at this request. The service manager happened to be passing and observed his behaviour. She approached the complainant in an attempt to defuse the situation. The complainant got very aggressive towards her, shouted and employed aggressive body language. He stated that because he had commenced early he was entitled to go home early. When asked to whom he had made this request or from whom he had obtained consent he gave conflicting information; on one occasion, he stated that it was the support worker; on another an unidentified individual; on another the service manager. The respondent maintained that no approach was made to the claimant’s manager to change his hours as was required. The person whom he claimed to have asked does not work on Thursdays and was not there on that date. He shouted that “nothing I do here is appreciated, I don’t need this job; I’ve been looking at other jobs”. He also statedthat “I broke a red light for you”. The services manager tried to move the discussion to another, private, area but stated that the complainant continued to behave in an aggressive fashion so she sent him home.

The CE supervisor in evidence stated that he rang the complainant around 5pm; the CE supervisor stated that the complainant exclaimed loudly “How would you feel if the CEO started bullying you and asking you questions”. The Supervisor stated in evidence that the complainant started shouting down the phone at him. The complainant advised the CE supervisor of his intention to attend for work on 27th October; he was informed that he would be required to meet both the CE supervisor and the CE participant development officer. At that meeting on the 27th October, he was advised that an investigation would be mounted into the events of the previous day and that he was suspended on pay.

The investigative meeting took place on the 15/11/16. He was sent a copy of the terms of reference of the investigation, details of the allegations to be investigated and a copy of the Disciplinary Procedure prior to the meeting. The investigative committee met the complainant and his representative on 15/11/16 and formed the view that the claimant was unwilling to give assurances that there would be no repetition. The investigative committee concluded that he had a case to answer and that the following matters warranted the application of stage 8.2 of the respondent’s disciplinary procedures:

·        Behaviour likely to upset other employees, volunteers and clients.

·        Behaviour not in line with the values of the organisation.

·        Breach of trust.

·        Failure to carry out a reasonable instruction from management.

·        Traffic violation when driving an organisation vehicle in the course of his work.

A disciplinary meeting was held on 18/1/17 with the claimant and his representative in attendance. The Senior Manager, Emergency Services and the HR manager, (formerly the CE development participant officer) asked the complainant if had had time to reflect on the situation. When he responded that he didn’t fully understand the reason for the meeting, an explanation was again given as to the purpose of the meeting. The complainant was given an opportunity to reschedule the meeting; was offered time to prepare a statement. He declined. The complainant told the respondent that the investigative report was untrue and that his behaviour was attributable to the actions of management. He was unwilling or unable to answer questions as to how he would deal with a similar situation in the future. The respondent stated that the complainant expressed the view that the respondent was ‘brainwashing ‘him.

He sent back amendments to minutes of that meeting some of which were new points not raised at the disciplinary meeting.

The respondent stated that they ultimately decided that he had no mechanism or resources to deal with anger nor could he deal with acts which though unintended provoked anger in him. They didn’t consider other sanctions as he gave no indication that he would deal with a repeat situation any differently. His apology was perfunctory. He refused to take any responsibility for his actions. He works in clients’ homes.

The complainant was dismissed on 1/3/17   for the following stated reasons:

Ø  Behaviour likely to upset other employees, volunteers and clients.

Ø  Behaviour not in line with the values of the organisation.

Ø  Breach of trust.

Ø  Failure to carry out a reasonable instruction from management.

The complainant submitted an appeal against the decision to dismiss him on 1/3/17. On 13/3/17 the Senior HR manager responded and asked him to set out details of his appeal. The respondent received no reply to this request. On 5/4/17 the senior HR manager invited the complainant to meet him to discuss his appeal on 18/4/2017. The respondent heard nothing further from the claimant.

The claimant never submitted medical reports indicating that he had sought assistance about how he sometimes spoke to people.

The respondent submitted the protocol for changing hours.

The CE development participant officer told the hearing that when she advised the complainant not to seek assistance from the respondent’s staff during working hours he became very agitated and understood that she was trying to prevent him from getting any assistance.

The respondent stated that the sanction of dismissal was justified given that the complainant’s behaviour amounted to gross misconduct in contravention of section 8.2 of the disciplinary code and was also justified in that the complainant refused to accept responsibility for the incidents and attributed responsibility elsewhere.

The respondent accepted that he had apologised to the manager but at the same time attempted to rationalise his behaviour.

Regarding his statement that he had driven through a red light and which was one of the reasons the investigative panel believed that the application of the disciplinary process was necessary, the respondent stated that it was difficult for them to believe his later statement that he had not driven through a red light but had driven through an amber light. They did not accept his point that he was trying to illustrate that he was in a rush.  

Neither the dismissal or the facts leading to the dismissal are in dispute.

The respondent’s case is that the complainant was dismissed for gross misconduct and that the grounds generating the decision to dismiss are cited in Examples of Gross misconduct, Disciplinary Policy and Procedure, Respondent Organisation.

The grounds were

Behaviour likely to upset or disrupt other employees, volunteers, service users or visitors.

Insubordination and failure to carry out a reasonable instruction of management.

Breach of trust.

The complainant failed to prove that he had permission to leave early on the 26/10/16, did not dispute the substance of events of the 26/10/16, did not demonstrate that the respondent failed to employ the agreed procedures or that there was deficit in the procedures. It was the severity of the sanction which he complained of. The complainant while he did set out the reasons for his appeal did not follow through on the later stages of the appeals procedure appeal procedure. The same procedure does not address the issue of the dismissal occurring only after the appeal has taken place.

The Act

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“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 “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states “…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a) ……………..

b)     the conduct of the employee”

Two questions should inform my decision:

1.Were the “substantial grounds” required by the Act manifested in the conduct of the complainant and

2. If so did they warrant this dismissal?

1a. Substantial grounds.

The complainant’s conduct was undoubtedly unacceptable and well below what an employer is entitled to expect. It was conduct which merited a sanction. It was the first application of the disciplinary procedure to his behaviour. The respondent’s disciplinary procedure identifies examples of gross misconduct. The respondent asserts that the behaviours exhibited by the complainant conform with these examples of gross misconduct. The respondent’s procedure offers several sanctions prior to dismissal. Their disciplinary policy allows them the option of dispensing with lesser sanctions in cases of gross misconduct.

The guiding principles informing a decision as to whether misconduct occurred and whether dismissal should follow on foot of misconduct were set out in several decisions. The High Court in Samuel J Frizelle v New Ross Credit Union Ltd, IEHC 137, stated that

“where unfair dismissal is in issue, certain premises must be established to support the decision to terminate the employment for misconduct”. One such premise is cited thus:

“the actual decision as to whether a dismissal should follow misconduct should be a decision proportionate to the gravity of the complaint and of the gravity and effect of dismissal on the employee. Put very simply principles of natural justice must apply”.

This case involved a credit union manager who re-phased his mortgage repayments without the authority of the lender, his employer. He told no one in authority. He was found to have been unfairly dismissed due to a procedural flaws and grounds of insufficient substance.

In Governor and Company of Bank of Ireland v James Reilly, (2015) IEHC 241, Noonan J. stated

“The court cannot substitute its own judgement on the reasonableness of dismissal for that of the employer; the question is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

The employee in that case was found to have been unfairly dismissed in circumstances where in circulating what was termed pornographic, indecent material he breached the email policy. Others engaged in the same activity were not dismissed.

1a. Misconduct: The gravity of the misconduct and whether it constitutes gross misconduct has been considered in a number of EAT decisions.

In Employee v an Employer, UD 2196/2011, where the employee spat at a customer in response to a racial slur, the EAT decided the conduct complained of having regard to all of the circumstances did not amount to “gross misconduct” and declared that

“the tribunal should decide whether the penalty of dismissal is proportionate to the offence. The doctrine of proportionality is now well established     in Irish law since Cox V Ireland (1992 2 I.R and Heaney v Ireland (1994 3 1.R 593) I.R. 50 and elaborated in other cases since then”. They also stated that the adjective “substantial”, contained in section 6(1) of the Act, requires that the matter relied on to dismiss “should be a matter of substance rather than form, and should be a matter of gravity”’. They found she was unfairly dismissed.

In Employer v Employee, UD 1454/2011, it was found that discrepancies in the till and a breach of a cashier protocol/ agreement did not amount to misconduct which would warrant dismissal.

In Bobby Amadsun V Shannon Transport and Warehouse Company UD 369/2010, the Eat decided that a live written warning, followed by extreme anti-social behaviour in the respondent customer’s premises, to which was later added an unauthorised use of a company vehicle could not be characterised as gross misconduct. It is not clear if the respondent’s disciplinary procedure gave examples of what amounts to gross misconduct and this may have saved the complainant whereas in the within case gross misconduct was elucidated. He was found to have been unfairly dismissed for this conduct.

2. Was dismissal warranted on foot of the complainant’s misconduct; the proportionality of the sanction?

I The Labour Court in Determination UDD 1623 concluded

“ …the Court is of the view that the sanction of dismissal would have been wholly disproportionate even had the allegations actually raised against the complainant been upheld in a fair and objective disciplinary process. It follows that such a sanction is without justification having regard to the Court’s findings in relation to the manifestly unfair manner in which the disciplinary issues emerged and were treated with in this case.”

The issues raised in this case included alleged breach of time and attendance policy, continuous insubordination, abusive language and defamatory tone. What is noteworthy here is that even had the allegations been upheld they would not have been assessed as being of sufficient substance to warrant dismissal.

In Michael Mc Crann v Marks and Spencer Ireland Ltd UD 3/2013 the EAT awarded €13,000 to a sales assistant who had been concealing sales items and buying them himself at a later point for his relatives, denying the customers the benefit of sales items and prices. The tribunal stated

“It is clear that it was open to the decision makers to consider sanctions other than dismissal in relation to the alleged breach of ordering and reservation policy for sale goods. However no other sanctions were considered. The sanction of dismissal was disproportionate to the alleged actions of the claimant and was contrary to fairness and natural justice.”

In Desmond Brennan v Institute of Technology Carlow, UD 281/2000, the EAT stated

“The tribunal has to consider whether the respondent employer acted fairly and whether the dismissal was proportionate to the misconduct and fell within the range of reasonable responses. The test to be applied is

Did the respondent believe the claimant misconducted himself as alleged?

b) If so did respondent have reasonable grounds to sustain that belief?

c) If so is the penalty of dismissal proportionate to the alleged misconduct?”

The claimant in this case left early without permission, locked the premises with the result that a student was locked in for the weekend. He was found to have been unfairly dismissed both on procedural and substantive grounds

In Mark Devlin v Ladbroke (Ireland) Ltd. UD 442/2011, the dismissal was found to be “not proportionate “to the misconduct where the claimant’s unauthorised use of accepting (cashless) credit bets was unauthorised and contrary to company policy.

Section 5 of the 1993 Act  allows for an examination of the

“reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.” This has been interpreted as a requirement for to decisions to be  in line with constitutional principles, natural justice and fair procedures.

All the above cases deal with either examples of a breach of trust- some more serious than others,

or conflictual or oppositional relationships with the employer, or failure to comply with policies- sometimes all three, yet none of these behaviours were seen as deserving of the characterisation of gross misconduct meriting dismissal. The respondent believed that the complainant misconducted himself. There were reasonable grounds to sustain that belief. Was the action proportionate to the alleged misconduct?

The complainant had never received any prior verbal or written warnings. The respondent’s disciplinary procedure does allow the respondent to leapfrog the lesser sanctions and apply the ultimate penalty of dismissal for gross misconduct.

The bulk of the respondent’s reasoning for utilising the sanction of dismissal was that the complainant did not take responsibility or give a guarantee that he would deal with his anger differently in the future. While I find that the written and oral evidence did exhibit recalcitrance on the part of the complainant at times, the fact that he did apologise to the manager, did offer to apologise to anybody else affected by his undisputed ill-tempered behaviour, had attended counselling sessions, was considering anger management sessions and did seek out the help of a Doctor -for which he submitted evidence to the hearing -about his difficulties in communication is evidence of an attempt, if incomplete, to rectify the matter. He also gave an assurance that he would never again organise a personal event on his working days. The respondent stated that the claimant had accepted in a written statement to the investigation team that he had got angry and had got out of control when speaking to the service manager. The respondent accepted that complainant would not intentionally disrupt or upset clients. The fact that he tried to explain his actions and attribute some responsibility to others does not cancel out the steps he took to remedy the situation.

Decision to dismiss within band of reasonableness?

Based on the decisions cited above, on the fact that this was a once off outburst of anger, I decide that it was not. The sanction of dismissal was disproportionate to the gravity of the conduct complained of. Therefore, he was unfairly dismissed.

Remedy.

His preferred remedy is reinstatement. Given the attitude of the parties, I do not consider this to be feasible.

Loss

The complainant has not worked since his dismissal on the 1/3/17. Though requested, he submitted no evidence of attempts to mitigate his loss by seeking alternative employment.

His behaviour contributed very significantly to his dismissal. He did not follow through on the appeals process.

Accordingly, I award him €1000.

I find that the complainant was unfairly dismissed. I award him €1000.

Dismissal; gross misconduct; proportionality of sanction; complainant’s own contribution to dismissal.