Complainant

Respondent

Anonymised Parties

A Welder/Fabricator

A Technology Company

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-00015615-001

06/11/2017

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. The parties furnished written submissions at the adjudication hearing. Further information was sought from the parties. The date of receipt of the last submission was 21st June 2018.

The respondent stated that the dismissal of the complainant was not unfair. The respondent contends that the 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 stated that it sought agreement on travel within Ireland and abroad and that employees would carry out additional duties such as Spot EP (Electro Polishing), Fine Polishing, Site Service Day trips and overtime when required. The respondent stated that the complainant indicated that he could not undertake travel that involved overnight absence from home due to personal reasons and did not make himself available for training in respect of Spot EP and Fine Polishing due to unfounded concerns relating to health and safety. The respondent stated that the health and safety concerns were confirmed by way of a letter from the complainant’s GP. The respondent stated that the complainant was unable to substantiate any of the assertions that were made in relation to injuries that were sustained by other employees engaged in Spot EP or Fine Polishing.

The respondent stated that a meeting took place on 22nd June 2017 with the complainant as no agreement had been reached on any of the additional duties sought. The respondent confirmed that the complainant was suspended with pay pending a disciplinary meeting. The disciplinary meeting took place on 27th June 2017 and was conducted by the Site Operations Manager. The respondent stated that the complainant was issued with a two-week unpaid suspension for an unreasonable refusal to obey a lawful instruction of management which constituted misconduct. The respondent stated that an appeal hearing took place on 24th July 2017 and a subsequent meeting took place with the Site Operations Manager on 25th July 2017 at which the complainant was given a further 24 hours to consider his position. The respondent stated that the complainant refused to co-operate with any of the proposed additional work requirements. The respondent stated that the Site Operations Manager dismissed the complainant for his continuing unreasonable refusal to comply with a lawful instruction. The respondent stated that the dismissal was appealed and an appeal hearing took place on 29th August 2019. The decision to dismiss the complainant was upheld on appeal. The respondent contends that it acted reasonably and in line with its procedures at all times.

The respondent’s representative cited the cases of Brewster v Bure 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. 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.

Mitigation of Loss

The respondent stated that the complainant has not met the required standard in seeking to mitigate his losses since his employment ended. The respondent cited the cases of AT&T Drain Services v Duggan (UDD1737) and Sheehan v Continental Administration Co. Ltd (UD858/1999).  The respondent stated that the complainant has provided only three letters in relation to attempts to find alternative employment in the 10 months since his dismissal to the date of the adjudication hearing. The respondent noted the complainant’s assertions that he gained part time work in February 2018 working 2 or 3 days per week at a significantly reduced rate of pay.

The complainant stated that he was unfairly dismissed by the respondent. 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 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 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 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 was present at the appeal hearing which was held on 29th 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 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 as a result 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 as a result 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 relating to day travel requirements.

The complainant’s signed contract of employment provides as follows:

“You will be required to be flexible in this position and must be prepared to undertake such other work as may be assigned to you by the Company from time to time. Such work can be outside the area of your normal duties and it may be for such subsidiary companies as the Company may be required.

Your general work will include tank fabrication, welding. You may be required to acid, passivate and wash tanks and also some polishing.”

On this issue I find that it was reasonable of the complainant, given his personal circumstances to decline overnight travel to other locations. However, on the other issues he could have been more flexible and co-operative as opposed to his continuous refusals to consider any of the options put to him.

The respondent 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.

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 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.’

In all of the circumstances of this complaint, I do not accept that the complainant’s actions constituted gross misconduct or that he should have been disciplined at Clause 5 of the Disciplinary Procedures which ultimately led to his summary dismissal. The disciplinary process concluded that the complainant’s behaviour constituted misconduct yet he was summarily dismissal which, under the respondent’s procedures is the sanction that applies to gross misconduct.

Disciplinary process

The Site Operations Manager 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.

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, 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.

Mitigation of Loss

In calculating the appropriate compensation due to the complainant, I am mindful of the EAT Decision of Coad v Eurobase (UD1138/2013) in relation to the complainant’s efforts to mitigate his losses. In that case the EAT found that the complainant’s efforts had not met the standard as set out in the case of Sheehan v Continental Administration Co. Ltd (UD858/1999) which 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.”

In the instant case, the complainant did not provide any evidence that he met the standard in attempting to mitigate his loss. In those circumstances, I do not consider it appropriate to award the level of compensation sought.

Conclusions

In all of the circumstances of this case, I find that the complainant was unfairly dismissed on procedural grounds on the basis 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 found that his behaviour constituted misconduct. In those circumstances I find that the sanction of summary dismissal was disproportionate to the matter at hand.

Despite the complainant’s assertions that the changes were at variance with the terms of his contract of employment, the contract is quite clear that flexibility is required which the complainant did not provide. Accordingly, I find that the complainant was 40% responsible for his dismissal by his constant refusals and lack of flexibility throughout the process. I have taken this into account in calculating the appropriate levels of compensation and have also taken into account the submissions of the parties concerning the efforts of the complainant in relation to the mitigation of losses.

Having considered the submissions of both parties and all of the evidence adduced at the hearing of this complaint, I find that the dismissal of the complainant was procedurally unfair. The respondent is directed to pay the complainant €5000 in compensation within 42 days of the date of this decision.