Complainant

Respondent

Anonymised Parties

A General Operative

A Meat processing plant

Representatives

Enda O'Connor O'Connor O'Dea Binchy Solicitors

Purdy Fitzgerald 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-00012313-001

05/07/2017

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

CA-00012313-002

05/07/2017

The Respondent operates a meat processing plant. The Complainant was employed by the Respondent since 2011. He was paid €414.16 gross per week and worked approximately 43 hours. His employment was terminated on the 6th January 2017. He claims that he was unfairly dismissed and seeks compensation. The Respondent denies the claim.

The Respondent submits that at the time of the incident leading to the dismissal the Complainant had an active Final Written Warning on his personnel file. That warning resulted from the Complainant’s failure to obey a supervisor’s instruction. It was noted during those proceedings that despite this matter being deemed an action of gross misconduct the Respondent Company was furnishing him with a warning as opposed to ultimate sanction that was open to it. The Complainant did not appeal that penalty, despite having the opportunity to do so.

Subsequent to the Final Written Warning, the Complainant once again faced an allegation of refusal to obey an instruction from one of his supervisors on the 16th December 2016. In line with the company procedure, the Complainant was suspended with pay pending an investigation in the matter. Following the investigation, it was found that the Complainant had a case to answer and the matter proceeded to a disciplinary hearing. Ms JG, Office Manager at the plant chaired the disciplinary hearing and decided that the Complainant’s actions amounted to an act of gross misconduct. Taking into account that the Complainant already had a live Final Written Warning on his file and also the nature if the matter concerned, Ms JG decided that the penalty to be furnished was one of summary termination of employment. The investigation was thorough one with the Complainant being furnished with his full rights to natural justice and fair procedures and the Respondent acted in a reasonable manner and complied with the provisions of its own policies and the provision of S.I. 146/2000. The Complainant at all stages had representation and a translator. His contract of employment was in a language of his understanding. He also signed confirmation of receipt of the company Handbook. He was furnished with a copy of the Respondent’s Disciplinary Policy in a language of his understanding.

Following the decision to dismiss, the Complainant appealed the decision and despite having no entitlement to same, the Respondent granted the Complainant the right to bring a solicitor as his representation. During the appeal hearing, the Complainant made several allegations of bullying and harassment against his supervisors. Mr. SM who was dealing with the appeal, granted the Complainant the opportunity to have these claims investigated prior to deciding on the appeal. The Complainant was unable to substantiate any of his allegations with dates or additional details which would be required to pursue any such complaint. The Respondent could not progress the said complaints and furnished a decision to uphold the original penalty of summary dismissal.

The Respondent relies on the case law: Pacelli v Irish Distillers Ltd. (UD417/2006), Brewster v Burke (unreported, HC, 1978), McKenna V Farrell Brothers [1991] ELR 77, Bigaignon v Power Team Electrical Service Ltd., British Leyland UK Ltd. v Swift (1981 IRLR 91), AIB Plc v Purcell.

Evidence of Mr CD, General Manager

Mr CD confirmed that it is a standard procedure that any individual working “on bones” can be moved as it is the least priority work. He emphasised that there are over 100 employees working in the boning hall and allowing them to refuse to follow reasonable instruction to move would create a mayhem. Refusal to follow instructions is listed as gross misconduct in the company Handbook. The Complainant has previously refused to do work as requested and he has not been dismissed. It was explained to him that if he has a problem he can always talk to a manager. Mr CD submitted that there was also a safety concern as at the time of the incident in question the Complainant held a knife and was hazardously waving it. In cross-examination Mr CD confirmed that the Respondent does not link the previous incident (October 2016) with the one which led to dismissal (December). He confirmed that the December incident was a separate one and warranted dismissal. In cross-examination Mr CD confirmed that there is no precise finish time, it’s “fluid” and it is established practice that one can go home once his/her work is done.

Evidence of MS JG, Office Manager

Ms JG confirmed that she conducted the Disciplinary Hearing on the 4th January 2017. She stated that she took all statements and evidence into account when making a decision. She confirmed that the CCTV footage confirmed that the Complainant was asked to move to another station 51 minutes before he finished work. He was informed that the new job would not take longer than one hour.

Evidence of Mr SM, Group HR Manager

Mr SM confirmed that he heard the appeal. He clarified that the work the Complainant was asked to move to is considered to be lighter job in comparison to the job the Complainant was working on. He stated that at the appeal hearing the Complainant brought up grievance but there were no specifics given. He put the appeal on hold to allow the Complainant to furnish details to substantiate his claims but these were not forthcoming.

The Complainant submits that he normally starts work at 7 am in the factory "boning hall". There is an established practice amongst employees that the work day finishes when their work stations are cleared. On the 3rd October 2016 the Complainant had almost completed all the duties at his work station and was preparing to go home when the Complainant's supervisor Mr SD asked the Complainant to swap stations with a fellow employee ("Moldovan Man"). The Complainant had no issue with this. The "Moldovan man" was to move to another area known as the PAD room. The "Moldovian man" refused to move to the PAD room and the Complainant was therefore unable to take up work at the "Moldovan man's" station. When the "Moldovan man" refused to move a manager, Mr EM approached the Complainant shouting at him to move to the PAD room. The Complaint tried to explain that it was the "Moldovan man" who had been directed to go the PAD room by Mr SD not him. The Complainant requested not to go the PAD room as he had come to work early and would have to remain in work for at least three further hours in the PAD room. He had also been threatened and subjected to rude and racist remarks by "Anthony" in past who works in the PAD room and the complaint felt intimidated by him. The Respondent was aware of this threatening and intimidating behaviour by Anthony. Mr EM then threatened the Complainant and said that he would "get" him next week. The Complainant was then sent to the HR office by another manager Mr. COH. During the disciplinary investigation Mr EM, Manager stated that he had initially wanted the Complainant to go to the PAD Room while Mr SD confirmed that in fact they wanted the "Moldovan man" to go to the PAD Room and the Complainant to go to the "Moldovan man's" station. Despite Mr EM misleading the investigation the Complainant was suspended without pay for one week and received a written warning for not following instruction. This written warning was in English only. It is submitted that Complainant was erroneously reprimanded.

On the 15th December 2016 Mr SD told the Complaint that when he had finished his work at his ordinary work station he had to stay on to clear back logs on other stations i.e. "pile -ups". The Complainant asked Mr SD what "pile-ups" he was being asked to clear and he was informed "all" of them. No one else was instructed to stay despite him having worked diligently all day so that his work station would be clear on time. The Complainant voiced unhappiness about being unfairly treated and being asked to stay on to do other employees’ work. He informed his manager that he was not feeling well, his hands and arms were sore. Manager, Mr. COH then directed him to go to Ms MMG in the HR office. On the way to the HR office Mr. COM began shouting at the Complainant in a humiliating fashion. The Complainant felt bullied and advised Mr. COM that his conduct was not appropriate and he was being bullied. Mr COH started laughing at the Complaint and blocked him from entering the HR Office and then advised him to leave the factory.

The Complainant’s solicitor submits that the information meeting in relation to the incident was held on the 16th of December 2016 and that at this meeting the Complainant received a letter informing him that he is now suspended. Clearly, the letter was prepared prior to the meeting and therefore the outcome was pre-empted. He also submits that the Respondent placed undue weight to the incident of October 2016. He also submits that the correspondence was issued to the Complainant in English which not in his native language. In cross-examination, the Compliant agreed that he did not ask for translation of the letters.

The solicitor on behalf of the Complainant submits that the Complainant was unfairly dismissed and seeks compensation.

The Respondent contends that the Complainant was dismissed on the grounds of gross misconduct after he has refused to follow reasonable instructions. The Respondent claims that it was a reoccurring issue with the Complainant and, as he was already on a final written warning, there was no other option but to dismiss the Complainant. The Complainant contends that he was being bullied, erroneously reprimanded and unfairly dismissed.

I will first address the legitimacy or otherwise of the final written warning issued in October 2016. Even though, the statement from Mr. SD, production supervisor seems to supports the Complainants assertion, the Complainant did not take up the option of an appeal as allowed; he did not exhaust procedures. Consequently, he must accept that this warning was extant when the decision to dismiss was taken, it is too late to try and undo that final written warning now.

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 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 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.” 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).

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).  

In considering the fairness of the Respondent’s decision to dismiss the Complainant, a number of factors 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.

I am satisfied, based on the evidence adduced that there was sufficient evidence before the Respondent to conclude that the Complainant did refuse to follow instruction from Boning Hall Supervisor and Boning Hall Production Manager on the 15th December 2016. Therefore, I accept that sufficient grounds existed for the Respondent to initiate disciplinary process.

In relation to the conducting of the disciplinary process I note that the Complainant has received details of Disciplinary Procedures in a language of his understanding. The document outlines clearly the details of the disciplinary code and process as well as gives examples of gross misconduct, failure to follow instruction being one of them. I note that the Complainant was suspended from duty with immediate effect on the 16th December 2016 whilst the allegation of misconduct was to be investigated. He was invited to an investigation meeting on 28th December 2016 and to a disciplinary hearing on 4th January 2017. At the meetings the Complainant raised an issue of bullying against Boning Hall Production Manager. However, he chose not to proceed with these allegations despite being asked on more than one occasion if he would like the Respondent to raise this grievance. The decision to dismiss was communicated to the Complainant in writing in 6th January 2017. He was informed of and exercised his right to appeal. The appeal hearing was held on 27th February 2017 and the Complainant was accompanied by his solicitor. The Complainant again raised the matter of bullying and was allowed the opportunity to present evidence to support his claim post-hearing. However, his solicitor confirmed in writing that the Complainant was “unable to provide more specific dates or any other information other than what has been provided”. The Respondent proceeded with issuing the decision and upheld the decision to dismiss the complainant.

I note that the Complainant was informed of his right to representation and was accompanied at the meetings. In fact, the Respondent agreed to the solicitor representation at the appeal hearing despite the fact that its own procedure does not allow for legal representation but trade union or a work colleague. I note also that the Complainant was furnished with copies of all records, minutes of meetings and CCTV records.

I would have some concerns in relation to the matter of suspension. In the case of The Governor and Company of the Bank of Ireland-v-James Reilly the High Court recognized that suspending someone-even on full pay-is a very serious measure with potential reputational damage which may never be overcome, even if the employee is subsequently found to be not guilty of the allegations. It held that a suspension should only be imposed “after full consideration of the necessity for it pending a full investigation” of the issues. In the case before me the reason for the suspension is not clear and does seem to be linked to the fact that the Complainant wasalready on a final written warning. Moreover, I note that the Suspension from Duty letter was handed to the Complainant during the first, Information Meeting. It is therefore clear that the decision to suspend the Complainant was taken without the Complainant being afforded opportunity to explain the events. However, taking all the above into consideration, I am satisfied that, despite these shortcomings, the disciplinary process was in general conducted in accordance with the requirements of fair procedure, due process and natural justice.

The final matter 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.

Firstly, I note that the General Manager of the Respondent confirmed at the hearing that the matter of December incident was dealt with separately to the October incident and in itself warranted dismissal. I note that there was one allegation of misconduct against the Complainant, namely refusal to follow instructions form Boning Hall Supervisor and Boning Hall Production Manager. I note that the Respondent’s Handbook gives some examples of what constitutes gross misconduct. “Deliberate refusal to carry out the legitimate instructions of a Company Official” is one of the examples given.

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 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.’

I note that in Brewster v Burke and the Minister for Labour [1985] 4 JISLL 98 the High Court stated: “It has long been part of our law that a person repudiates his contract of service if he willfully disobeys the lawful and reasonable orders of his master. Such a refusal justifies an employer in dismissing an employee summarily.” However, as has been pointed out in such cases, it is necessary to examine the reason for the refusal to follow the instructions. I acknowledge the Complainant’s assertion that he was tired and his hands and arms were sore. However, I note that the Complainant was permitted by his supervisor to discontinue his work and contact the HR office. He did not do so and continued to work. I accept the Complainant’s explanation that the standard practice in the company is that the employees are paid per kilogram not per hour and they are not given a specific time they finish their shift. Instead, the practice is that they work until their station is cleared and then they are free to go home. This was confirmed by Mr. CD, the General Manager in his evidence. It is therefore understandable that the Complainant, while not being at his best, endeavored to clear his station as soon as possible and go home. There was conflict of evidence in respect of the details of the instructions given to the Complainant. The Complainant claims that he was asked to clear all backlogs on other stations which would require him to stay much longer than anticipated at work. The Respondent claims that the Complainant was clearly informed he is needed for one hour only. The Complainant claims that he was the only employee asked to move station, whereas the Respondent claims that two other employees were asked and did move the stations. The Complainant also submits that he has previously said that he did not feel well and was called a “liar” by his supervisor.

Taking the striking conflict of evidence, it is impossible to establish the actual version of events.

On balance, I find that the refusal to carry out the instruction to move to another station, in all the circumstances of this case, could not be regarded in a category of “very badbehaviour of such a kind thatno reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer.” I am therefore satisfied that the sanction of dismissal was disproportionate and could not be regarded as falling within the range of reasonable responses of a reasonable employer to the conduct in issue. I am satisfied that the decision to dismiss the Complainant 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 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 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. The Complainant submitted that he was in receipt of social welfare benefits from January to 20th May 2017 (19 weeks). He then secured a new job at €500 net a week. The Complainant did not present any evidence of efforts made to mitigate his loss.

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. 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 €3,147.61. In considering compensation, I find that the complainant contributed 60% to the situation in which he found himself.

The Respondent is therefore ordered to pay the Complainant a total of €3,147.61 in compensation, subject to any lawful deductions within 42 days from the date of this decision.

Refusal to follow instructions- unfair dismissal