Complainant

Respondent

Anonymised Parties

A Supervisor

A Community Organisation

Representatives

Gerard Kennedy SIPTU

Ray Delahunt, BL, instructed by Pembroke 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-00012424-001

11/07/2017

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

CA-00012424-002

11/07/2017

The Complainant was employed by a Community Organisation A for some 13 years, when, following a restructuration and amalgamation of some services he became an employee of the Respondent in January 2014. The Complainant was employed as a Supervisor, he worked 39 hours a week and was paid €772 gross weekly.

He was dismissed on 9th May 2017 for alleged gross misconduct. The Complainant is seeking re-instatement in respect of claim of unfair dismissal and his entitlement to the statutory minimum notice. The Respondent objected to re-instatement claiming that the relationship is broken and it would not be possible to work together. The Complainant had the requisite twelve months’ service for the purposes of bringing a complaint of unfair dismissal which was brought within the six-months statutory period. The fact of dismissal is not in dispute.

The Respondent’s position is that the Complainant was not unfairly dismissed but was dismissed due to gross misconduct. The Respondent submits that issues arose between the Respondent and the Complainant in early 2016 and this led to three meetings in April 2016 when the Complainant questioned the Respondent’s approach to planning and use of funds. He also raised a matter related to health and safety requirements in respect of a barrier installed on the Respondent’s grounds. The Respondent took on board his views and altered the barrier in question. However, issues between the parties continued into June 2016 and a further meeting was held on 13th June 2016. Despite clear instructions not to do so, the Complainant facilitated opening of the barrier in question on several occasions. It also came to the Respondent’s attention that the Claimant was lending equipment belonging to the Respondent without prior approval and was spending time away from his duties during work hours. A disciplinary meeting focusing on the Complainant’s failure to follow his employer’s instructions was held on 16th August 2016. Upon the request from his Union representative, as an alternative to a more severe sanction, the Claimant received an oral warning and a probationary period of 6 months was agreed.

However, after the passing of the 6 months the Complainant again recommenced opening the barrier contrary to express instructions not to do so. Moreover, on 21st April 2017 the Complainant made abusive, offensive and threatening comments during a telephone call with two female members of the Respondent, Ms A and Ms B which left both ladies fearing for their personal safety. Ms A is the Chairperson and Ms B is the Secretary of the organisation. Ms A and Ms B decided “in the interest of good will” not to report the matter to the Gardai.

After a legal consultation and emergency meeting of the Respondent, it was agreed to call a disciplinary meeting. A letter inviting the Complainant to a disciplinary hearing was sent on 21st April 2017. The meeting was scheduled for 28th April 2017. The Complainant was late, he verbally abused persons present and refused to take any part in the disciplinary meeting. He walked out immediately. The meeting was reconvened on 5th May 2017 at the Complainant’s request and he was notified of same. The Complainant failed to attend. The Respondent proceeded to dismiss the Complainant for gross misconduct with immediate effect. The outcome of the meeting was notified to the Complainant by letter dated 5th May 2017. He was informed of his right to an appeal and steps were taken to arrange same before a differently constituted panel of people to the one that conducted the previous disciplinary meetings. The appeal which he attended was held on 30th May 2017 and the decision to dismiss the Complainant was upheld.

The Respondent has acted fairly and reasonably. The Complainant was given every opportunity to address the issues of which he has been put on notice and deliberately chose to ignore or refused to take part therein.

The Complainant was dismissed following a failure to attend the final meeting. The Respondent was not afforded an opportunity to investigate the matter of the highly abusive, offensive and threatening phone call, which left two people fearing for their personal safety. In addition, the refusal by the Complainant to comply with the reasonable instructions given to him by the Respondent regarding the non-opening of the barrier in question, despite his having undertaken to so comply in August 2016, constitutes a sound basis for dismissal without notice on the grounds of gross misconduct. Furthermore, the vulgar abuse at the disciplinary meeting on 28th April 2017 and the refusal to engage/partake in that meeting, constitutes a sound basis for dismissal without notice in the grounds of gross misconduct. Moreover, the non-attendance by the Complainant at the reconvened disciplinary meeting on 5th May 2017 showed a clear intention on his part not to engage in the disciplinary process and is in itself a valid ground for dismissal without notice on the grounds of gross misconduct.

SIPTU on behalf of the Complainant submits that the dismissal was unfair on a substantive and procedural basis.

It was submitted that: (i) there was no investigation carried out; (ii) The Complainant was not advised that his job is in jeopardy; (iii) people who made the complaint against the Complainant were involved in the decision making-process.

It is submitted that management failed to advise the Complainant that the meeting on the 28th April 2017 was a disciplinary meeting. The Complainant’s understanding was that the meeting was supposed to be held in relation to a specific issue and the Complainant at no stage was informed that it was in fact a disciplinary meeting. The Respondent has never advised the Complainant of his right to bring a representative or to advise him of the misconduct or gross misconduct giving rise to the disciplinary meeting or the possible implications of same.

The Complainant contends the Respondent’s statement in relation to the letters informing him of the meetings on the 28th April 2017 and 5th of May 2017. He claims that he collected the registered letter of the 21st April but did not open it. In relation to the next letter, in the evening of the 4th May 2017 he received a notice from An Post notifying him that a registered letter addressed to him is to be collected from a post office. He left the workplace on the morning of the 5th, collected the letter but did not open it until Monday, 8th of May 2017. He was therefore not aware of the meetings. He denies receiving any text messages in that respect. He also denies that he requested the meeting to be held on the 5th May 2017. The Complainant was informed of the outcome of the meeting he did not attend by hand delivered letter he received on 8th May 2017.

In relation to the matter of the barrier, the Complainant submits that there were works to be carried out in the area in question and he left the barrier open for a week to facilitate delivery of material. The barrier would have been also left open in the past to facilitate school buses.

The Complainant submits that it was agreed that a letter would be issued to the Complainant under which the Respondent would assume full responsibility for the barrier and to absolve the Complainant from any liability for same. However, this letter has never materialised.

In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(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 other 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.”

I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 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.” Likewise, an adequate investigation has to be assessed by the standard that could be objectively expected of a reasonable employer as per J Sainsbury Plc v Hitt (2003) ICR 111. In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues (reflecting the varying circumstances of enterprises/organisations), must comply with the general principles of natural justice and fair procedures. The contractual and constitutional rights to fair procedures are also well established (In Re: Haughey [1971] IR 217).

In terms of weighting up the substantive issues leading to the dismissal and the fairness of the procedure adopted the correct approach is to consider both together as per Iceland Frozen Food v Jones (1983) 1 ICR 17.

In hearing this claim, it is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made. (EAT – UD690/2012).  Reliance is placed on the decision of the Employment Appeals Tribunal in Hennessy V Read & Write Shop Ltd UD192/1978   “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to: (i) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant; and (ii) the conclusion arrived at by the respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

In considering the fairness of the Respondent’s decision to dismiss the Complainant, a number of factors or "tests" need to be considered. Firstly, it needs to be established whether or not there were sufficient grounds for the Respondent to initiate disciplinary action against the Complainant. Secondly, any investigation/disciplinary process applied must be in accordance with the requirements of fair procedures, due process and natural justice. Finally, consideration must be given to whether the sanction emanating from such a process falls within what might be considered a range of reasonable responses by the employer.

With regard to establishing the existence of sufficient grounds to initiate disciplinary process, I am satisfied, based on the evidence adduced that there was sufficient evidence before the Respondent to conclude that the Complainant

1)      refused to follow direct instructions from the Respondent to keep the barrier in question locked;

2)      used unacceptable and abusive language in his telephone conversation with Ms A and Ms B.

Consequently, taking all the above into consideration, I am satisfied that the Respondent had sufficient grounds to initiate an investigation/disciplinary process in relation to the allegations.

The second factor for consideration relates to the conducting of the disciplinary process. I note that the Complainant’s contract outlines clearly the details of the disciplinary code and process.

A letter inviting the Complainant to attend a disciplinary hearing on the 28th April 2017 was sent to the Complainant on the 21st April 2017. The letter was signed by Ms A and Ms B in their capacity of the Chairperson and the Secretary respectively. A telephone text message was also sent to the Complainant to confirm these arrangements on the 26th April 2017. The meeting was attended by Ms A, Ms B, the Respondent’s legal advisor, Mr O and two other members of the Management Committee.

The minutes of the meeting presented by the Respondent at the hearing show that the Complainant arrived late and informed persons present that he would not attend the meeting and he was “not in the mood for it”. The Complainant claimed also that he didn’t open the letter inviting him to the meeting. He left in “an offensive and irate fashion”. There was conflicting evidence as to whether or not the Complainant had requested a follow up meeting on the following Fri at 2pm. The minutes show that he did request it. The Complainant stated at the hearing that he might have suggested to meet at some stage next week but did not specifically request the date and/or time.

In any event, a letter was sent to the Complainant on the same day i.e. 28th April 2017 stating that it was considered “unacceptable that you came and walked out without attending the meeting.” The letter further stated that the directors wished to reconvene the meeting in Friday 5th May at 2pm. The letter noted that the “meeting will proceed to consider the allegations of gross misconduct with or without you, should you not be present as arranged and as per your request.” The letter was signed by Ms A and Ms B. Subsequently, a text message was sent to the Complainant informing him that a registered letter containing details of the meeting requested by the Complainant will be delivered to his address on Wed 3rd May.

The meeting was held on the 5th May 2017, as arranged, with the same attendance on the Respondent’s behalf. The Complainant did not attend the meeting. The Respondent’s legal advisor and Mr O excused themselves prior to the decision being made. The outcome of the meeting was to dismiss the Complainant with immediate effect for gross misconduct. The Complainant was informed of the outcome by letter dated 5th of May 2017 and signed by Ms A and Ms B. The letter informed the Complainant of the right to appeal.

The Complainant appealed the decision to dismiss. The appeal hearing was held on 30th May 2017. The Complainant was present and represented by SIPTU. The appeal was heard by two independent persons and Mr O who attended also the initial meeting on the 28th April and part of the meeting on the 5th May. Also in attendance was the Respondent’s legal advisor. The decision to dismiss the Complainant was upheld.

Turning first to the procedures adopted by the Respondent in the conduct of the disciplinary process. I note that the Respondent made some attempts to conduct a fair disciplinary process. However, I find that it was flawed from the outset.   Both allegations were made by Ms A and Ms B who allegedly were subjected to the Complainant’s verbal abuse and whose instructions he refused to carry out. There was no investigation carried out into the allegations made by Ms A and Ms B. Both Ms A and Ms B were involved in the disciplinary process from the start until the dismissal. Both signed the invitation letters of 21st April and 28th April 2017, both attended the disciplinary hearings on 28th April and 5th May 2017. Finally, both signed the letter of dismissal. While I note that a community organisations such as the Respondent rely on volunteers I find it concerning that Ms A and M. B being directly involved in dispute with the Complainant did not commission an investigation into the allegation by an independent party. Rather they proceeded with the disciplinary process in their capacity as the Chairperson and the Secretary of the Respondent. Equally, I find that Mr. O conducting the appeal hearing, taking his presence at the initial meeting on the 28th April 2017 and part of the meeting on 5th May 2017 might not have been the best choice. I note the Respondent assertion that there are no other persons within the organisation who would be in a position to conduct such an investigation and that hiring an independent advisor would result in additional cost to the voluntary community organisation. However, I find that the Respondent could have arranged person/s from outside the organisation to conduct the process e.g. from another local community group or a Government Department which was informed of the matter.

In terms of allegations put to the Complainant, the letter of 21st April refers only to the “failure to comply with the reasonable instructions of your employer, by failing to act as instructed, in relation to the closing of the barrier…”. However, the letter of 28th April goes further adding “that you spoke in an abusive manner to employers and that you walked out of a disciplinary meeting today as matters of gross misconduct.” It is quite unclear whether the abusive language refers to the earlier telephone calls or the meeting of 28th April. It seems to me that fair procedure would dictate that the Complainant should have been fully aware of the actual grounds of gross misconduct alleged at the time of disciplinary hearing and so afforded the opportunity to rebut and defend same.

I note that the Respondent took minutes of all meeting and notes of telephone calls with the Complainant. However, I would have some concerns related to the fact that the Complainant not only did not see them but was not furnished with copies until his solicitor’s request dated 22nd May 2017 following his dismissal.

I note that the Complainant was given access to an appeal process. He did exercise his right to appeal following legal advice.

I note that the Complainant raised the matter of the Respondent’s failure to advise him to bring a representative or a colleague to the disciplinary meeting.   While the best practice would be to include the details of representation in the invitation letters I find that the matter was clearly outlined in the Complainant’s contract of employment.

In relation to the Complainant’s assertion that he was not aware of the nature of the meeting on 28th April and that he was not aware at all of the meeting on 5th of May, I find his evidence implausible. The An Post delivery records show clearly that the Complainant did receive a registered letter on 24th April 2017. I note that due to the public holiday the letter of 28th April was somewhat delayed. However, the Complainant confirmed that he did leave his workplace during work hours to drive to the post office some 15 minutes away to collect the registered letter on the morning Friday 5th May. I do not find it credible that having gone into that much effort he would leave the letter unopened until Monday. I would have some concerns that the notifications of the second disciplinary meeting may not have been consistent with what one would consider as best practice in terms of notice given. Despite the fact that I believe the Complainant was aware of the reason for the meeting, the short notice was less than ideal in terms of preparation. Nevertheless, I do not accept that the Complainant was not notified of the meetings. Regrettably, the Complainant walked out of the first meeting and did not attend the second meeting. Therefore, he did not take advantage of the opportunity to respond fully to any allegations or complaints but he also did not give the Respondent an opportunity to investigate the matter.

Based on the above, I am not satisfied that, despite the Respondent making some effort, the disciplinary process was conducted in accordance with the requirements of fair procedure, due process and natural justice. This was to some extend due to the Complainant’s failure to attend the meetings and give the Respondent an opportunity to investigate and examine the allegations.

The final test for consideration relates to the proportionality of the sanction and whether or not it falls within the range of reasonable responses that might be expected in the circumstances.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act, 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241.

I note that there were two allegations of misconduct against the Complainant:

·         failure to comply with the reasonable instructions of the employer

·         speaking in an abusive manner to employers

Gross misconduct as defined in the Complainant’s contract “is generally characterised as an objectionable action that is wilful, and cannot be described as a mistake or an act of negligence, it includes wanton disregard for the safety of others, deliberate acts of violence or hostility, attempts at financial fraud or theft, substance abuse, and significant beaches of the code of conduct” [sic].

The 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 thatno 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.’

Whether or not the decision to dismiss the Complainant was within the “band of reasonable responses” available to the employer finding itself in the position of the Respondent, I note the following evidence adduced herein.

I note that the Complainant refused to follow the Respondent’s instruction in respect of the barrier in question. Despite an advice from An Garda Siochána and the insurer he kept the barrier opened. There were a number of meetings held with the Complainant where the matter of the barrier was discussed with the Complainant and his views were taken on board. Despite that the Complainant left the barrier opened for three days and nights in April 2017. He also removed the lock provided by the Respondent from the barrier. I note the Complainant’s explanation that this was done to facilitate delivery trucks. However, it was established that the deliveries could have been facilitated without the barrier being left open. I note also the Complainant assertion that the barrier would have been left open previously to facilitate school buses.

In relation to the abusive behaviour of the Complainant I note that the Complainant has used inappropriate language in his conversation with Ms A and Ms B. In The Governor and the Company of Bank of Ireland v James Reilly (2015) IEHC 241, Mr Justice Noonan allowed an appeal from the Circuit Court, finding that the employer had failed to establish substantial grounds for dismissal along with criticism of the disciplinary process adopted. He held that the sanction of dismissal was entirely disproportionate and could not be regarded as falling within the range of reasonable responses of a reasonable employer to the conduct in issue, where this had been common practice and the bank had not brought to the employee’s attention, the serious consequences of a breach of its written email policy including dismissal. Likewise, in the instant case, I am satisfied that the decision to dismiss the Complainant based upon his refusal to follow instructions of the Respondent to keep the barrier in question closed at all times in circumstances where this policy was not being consistently applied and the use of abusive language was not within the “band of reasonable responses’ available to the employer finding itself in the position of the Respondent.

Taking these findings together, I am satisfied that the Respondent has not discharged the onus of showing that the Complainant’s dismissal was fair. I find that the complaint is well founded and that the dismissal was procedurally unfair. I am also satisfied that the Complainant contributed in no small degree to the circumstances giving rise to his dismissal and consequent losses. In respect of redress, the Complainant seeks reinstatement, while this is resisted by the Respondent because of the broken relationship between the parties.

Section 7 of the Unfair Dismissals Act 1977, as amended, sets out the provisions dealing with redress, which in summary provides that the Adjudication Officer decides on appropriate redress, having regard to all the circumstances, as between: re-instatement, re-engagement and compensation.

In assessing redress I am satisfied that neither of the job-back remedies are appropriate, and the appropriate form of redress, having regard to all the circumstances, is that of compensation. Regarding compensation, the Act provides that compensation for financial loss (which is defined as including any actual loss and any estimated future loss) attributable to the dismissal, as is just and equitable having regard to all the circumstances, of up to a maximum of 104 weeks remuneration, may be ordered. In determining the amount of compensation, I am required to have regard to the following: the extent to which any financial loss is attributable to any act, omission or conduct by either the employer or the employee; the measures adopted by the employee to mitigate the financial loss; the extent to which the employer has complied with disciplinary procedures in relation to the dismissal; and the extent to which the conduct of the employee was attributable to the dismissal.

With regard to financial loss, he Complainant submitted that he has not secured a new employment since his dismissal. EAT case Sheehan v Continental Administration Co Ltd (UD858/1999) stated “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

The Complainant submits that he has asked his previous employer and had verbal communication with people he knows in order to secure a new job to no avail. No evidence was submitted in support of that statement.

For aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissal Act, 1997 and conclude that the Complainant was unfairly dismissed by the Respondent, I am satisfied that the Complainant contributed to a large degree to his dismissal and he made no effort to mitigate his loss. Until the date of the hearing the Complainant was out of work for approximately 25 weeks. I, therefore, consider it just and equitable in all the circumstances and taking the Complainant’s own contribution to the dismissal into account to award him €9,650 (approximately 12.5 weeks’ salary). The Respondent is therefore ordered to pay the Complainant a total of €9,650 in compensation, subject to any lawful deductions.

The Complainant submits that he did not receive any notice of his termination of employment, nor any notice payment.

The Respondent acknowledged that it did not provide the Complainant with the minimum notice period for the termination of his employment. It is argued that no notice was required as the Complainant was dismissed for gross misconduct.

Totality of the Complainant’s service is 15 years. Section 4(1) of the Minimum Notice & Terms of Employment Act, 1973 stipulates that “An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section”.

The evidence before me confirms that the Respondent dismissed the Complainant with immediate effect and did so without adhering to its obligations under the Minimum Notice and Terms of Employment Act, 1973 which under Section 4(2)(e) requires eight weeks’ notice if the employee has been in the continuous service of his employer for fifteen years or more.

In accordance with Section 4(2)(e) of the Minimum Notice and Terms of Employment Act, 1973 I find that the Complainant was entitled to eight weeks’ notice as she has over 15 years’ service at the time of his dismissal. In accordance with Section 12(1) of the Act I direct that the Respondent pay the Complainant compensation of €6,176 amounting to eight weeks pay within 42 days of the date of this decision, subject to any lawful deductions.

Unfair Dismissal Act, minimum notice