Complainant

Respondent

Anonymised Parties

A Supervisor

A Retailer

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-00018455-001

11/04/2018

The Complainant was employed by the Respondent as a Supervisor. The commencement date was in dispute. The Respondent argued that the Complainant was employed in 2009 by his previous employer and subsequently by the Respondent following a transfer of undertakings in October 2016. The Complainant argued that he started in February or March 2006. The parties confirmed that the Complainant worked 38 hours a week and was paid €400 gross. He claims that he was unfairly dismissed and seeks compensation in that regard. The Respondent rejects the claim.

The Respondent submits that the Complainant commenced his employment with a named Shopping Centre Management in 2009 but later transferred to the Respondent on 3rd October 2016. The Complainant was issued with a new contract of employment from the Respondent in October 2016 but whilst he executed the signing of all other staff contracts, he did not sign his own. The Complainant was a ‘Supervisor and Security’ since he was first employed with the Respondent and he reported to the Facilities Manager. The Respondent submits that the Complainant acknowledges in his complaint that he received the staff handbook of the named Shopping Centre Management. The Respondent submits that there were a number of serious disciplinary issues involving the Complainant in 2016 and 2017 that ultimately culminated in his dismissal on 4th December 2017.

The Respondent submits that the Complainant’s job description required him (among other things) to:

·         Supervise staff involved in cleaning of the centre and grounds.

·         Weekly rosters/breaks/clock/staff issues.

·         Liaising with various departments within the Respondent relating to repair and maintenance, emergency services, security, HR.

·         Key holder for the premises.

·         Call outs in the event of alarm going off. The procedure that was followed when the alarm was triggered was that a security service supplier to the Respondent called the Complainant in the first instance. In the event that the Complainant didn’t answer, it called a second staff member. If there was no reply from either of the staff members, it called the fire brigade services.

The Respondent submits that the Complainant received the following training:

·         English speaking course from 11th October 2017 to 20th December 2017

·         Manual handling on 12th October 2017

·         IT system (recording incidents) on 16th May 2017.

The Respondent submit that the following is the outline of performance issues that arose in the period from October 2016 through to November 2017: 8th November 2016 – 1st Final Written Warning was issued. A child of a customer sustained injuries and was hospitalised arising from repairs works being carried out on an access door to the shopping centre by the Complainant when the door fell. The Complainant had been made aware that a company responsible for fixing the door would be contacted but the Complainant proceeded to attempt to fix it when the incident occurred. Substantial legal and compensation costs were incurred arising from the injuries. 23rd February 2017 – no disciplinary action taken, the Complainant was spoken to. A person was hurt because the sensors on the door were turned off. The Complainant did not report the incident to security which he was required to do. As a result, substantial legal and compensation costs were incurred arising from the injuries. 2nd June 2017 – 2nd Written Warning issued. The Complainant was contacted by the Security Company and advised them that he needed the fire service and as a result the Security Company dispatched the Fire Brigade to the shopping centre at a cost of €1,100. The fire service was not required. 7th July 2017 – the Complainant was spoken to and reminded he was on 2nd Written Warning. The Complainant failed to respond to a call from the Security Company when the alarm went off and this resulted in them dispatching the fire service when none was required and resulting in a cost of €1,100 to the Respondent. 14th November 2017 – suspension related to the argument with another staff member. 4th December 2017 – termination

The Respondent submits that the details of the events of 6th November 2017 which led to the dismissal were as follows (as per the CCTV footage): The Complainant arrives on a corridor at the door of the canteen and door opens and Mr V emerges out of the canteen and onto the corridor with his hands in his pockets. The Complainant is scratching his left shoulder with his right hand and turns towards the canteen. The Complainant turn his body towards Mr V and is seen moving his hands as if explaining something. Mr V is standing still and continues to have his two hands in his pockets. Mr V appears to lean onto his right leg and still has his hands in his pockets when the Complainant swings his arm at Mr V at head height and Mr V continues to move his body away to avoid being struck in the head. Mr V slowly takes three steps backwards and continues to have his hands in his pockets and facing the Complainant. Mr V has taken another four steps slowly backwards whilst still facing the Complainant. The Complainant turns and walks in the opposite direction and out of the picture. Seconds later the Complainant is back in the picture and is walking towards Mr V and picking up a pace. Mr V turn and walks away from the Complainant and towards a door leading outside. Mr V opens the door and leaves the corridor. The Complainant turns and returns in the direction of the canteen door, Mr V closes the external door from the outside and the Complainant is out of picture inside the building.

The Respondent submits that it followed fair procedures in relation to the disciplinary matters, whereby

(i)                  Disciplinary hearings were preceded by investigation meetings

(ii)                The letter of invitation to the disciplinary meetings covered (a) purpose of the meeting made clear i.e. allegations the Complainant had to respond to, (b) the Complainant was advised at the time of invitation to the meetings and also at the commencement of the meeting that he was entitled to have someone with him, (c) outcome may result in disciplinary action, (d) copy of the Respondent disciplinary procedure.

(iii)               The Complainant was given adequate notice of meetings and a new date was rearranged when he was not available.

(iv)               A written record of the meeting was made by a note taker at the meetings.

(v)                The evidence being considered was provided to the Complainant and he was given opportunity to respond.

(vi)               Persons conducting the investigation differed from those who conducted the disciplinary hearing.

(vii)             Persons conducting the investigation, disciplinary and appeal were more senior and did not work at the specific site the Complainant worked in.

(viii)           The Respondent slowly and repeatedly went through written and verbal communications to ensure that eth Complainant understood what was been decided in regard to sanctions and what he needed to do to avoid further disciplinary action from such issues.

Proportionality of Sanction

The Respondent submits that there had been four serious disciplinary issues in the year prior to a decision to terminate the Complainant’s employment. Two of these resulted in the Respondent and the previous employer incurring substantial legal and personal injury costs by customers and staff members of another business in the shopping centre. The Complainant’s contribution to these were (a) he did not report a defect and a subsequent accident to his manager when the Safety Policy explicitly requires him to do so, (b) he undertook work on a door to the shopping centre which he was told by his manager that it was to be done by a specialised service provider. The other two issues resulted in costs arising for services that were unnecessary. The final issue exposed the Respondent to an allegation of not providing its staff with a safe place of work and comprised of totally unacceptable behaviour. Both staff handbooks explicitly state that the following are examples of gross misconduct:

·         Dangerous behaviour, fighting or physical assault

·         Serious breaches of health and safety rules that endanger the lives of employees or any other person;

Both handbooks explicitly state that the Respondent may use CCTV footage in its disciplinary process.

The Respondent submits that its disciplinary procedure outlines 5 stage process. The Respondent submits that it had decided not to dismiss and to reissue a second final written warning to the Complainant arising for the incident involving the fire service. The Respondent claims that, unfortunately, after a year involving 5 incidents giving rise to disciplinary sanctions against the Complainant and where two of the incidents involved customers, unnecessary costs arose from two other incidents and the final one involved risk to the health and safety of a staff member the Respondent felt it had to terminate the Complainant’s employment.

Redundancy

In respect of the Complainant’s assertion that the Respondent dismissed him to avoid making him redundant the Respondent submits that the Complainant was dismissed because of the disciplinary issues. The Complainant’s role of a Supervisor is now being done by a person who previously worked in security.

In summary, the Respondent submits that it followed the company disciplinary and appeal procedure. The Respondent submits that the Complainant was provided with the company policy and procedures and that the Respondent delayed the ultimate sanction of termination of employment. The Respondent contends that the Complainant was in breach of company policy and procedures affecting the health and safety of customers and staff. The Complainant held a role of a Supervisor and therefore was required to demonstrate good behaviour and example.

The Respondent cited Lennon v Bredin MN 160/1978 where the EAT held that assault is referred to as very bad behaviour of such kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer.

The Complainant submits that his employment was terminated on 4th December 2017. He claims that there was a verbal argument with a member of staff on 6th November 2017, which was reported and investigated by the maintenance manager Mr R on 8th November 2017. The Complainant submits that he was subsequently called to a disciplinary meeting on 18th November 2017 conducted by Mr P with notes taken by Mr K, both managers with the Respondent. In that meeting the managers raised the matter of a warning issued previously for not answering a call out of hours. They noted that it was considered a final warning and it was still in effect. The Complainant submits that they also stated that he was issued a handbook and that major misconduct is: “rudeness toward customers, members of the public or other employees, objectionable or insulting behaviour or bad language”. The Complainant claims that hehas a copy of the Handbook which was issued to him previously (before transfer of undertakings took place in 2016). The Complainant claims that the Handbook lays out what major misconduct is; however, this line does not appear there. The Complainant submits that the incident as investigated was an argument between the Complainant and another employee of the Respondent. The Respondent claims that the Complainant swung out at a member of staff. The Complainant argues that in the heat of the argument he begun to swing but checked himself and walked away to defuse the situation and to allow both to calm down. The Complainant submits that the Respondent claims that it was major misconduct in allowing himself to become angry and the decision to dismiss him was made on 4th December 2017. The Complainant appealed the decision and the appeal meeting took place on 21st December 2017 with Ms G, HR Manager. The outcome of the appeal was to uphold the earlier decision to dismiss and it was made known to the Complainant by letter on 8th January 2018. The Complainant contends that the Respondent used this as an opportunity to dismiss him and avoid making him redundant and have exaggerated an argument between two members of staff in which, the Complainant claims, he controlled his anger and defused the situation. The Complainant submits that he submitted a data protection request to the Respondent to which the Respondent replied requesting payment. The Complainant stated that the Respondent should be supplying the Complainant with a copy of his file and documents associated with the disciplinary process.

The Respondent contends that the Complainant was dismissed on the grounds of gross misconduct. The Respondent claims that the Complainant was already on a second final written warning, there was no other option but to dismiss the Complainant. The Complainant contends that he was being unfairly dismissed.

The Unfair Dismissal Act, 1977

Section 1 of the Unfair Dismissals Act, 1977 defines dismissal in the following manner: “dismissal”, in relation to an employee, means— (a)the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b)……

Section 6(1) states: “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): “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.

Dismissal as a fact is not in dispute and so therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. The Respondent argues that the dismissal was warranted due to the Complainant’s conduct. 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 Act 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.

Band of reasonable responses

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.”

It is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as an Adjudication Officer is whether the Respondent’s decision to dismiss fell within the bands of reasonable responses which a reasonable employer might have adopted (Iceland Frozen Food v Jones [1982] IRLR 91).

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 that no 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 relation to this case I find as follows:

The Complainant was subject to a number of disciplinary processes in 2016 and 2017 which resulted in the issuing of two final written warnings to him 8th November 2016 and 2nd June 2017. In relation to the legitimacy or otherwise of the final written warnings issued to the Complainant, on both occasions the Complainant was informed that he could appeal the decision. The Complainant was informed that each of these warnings would remain in force for a period of twelve months. Consequently, he must accept that both warnings were extant when the incident of 6th November 2017 occurred and the second warning was extant when the decision to dismiss was taken. There is no opportunity now to retrospectively change this.

The circumstances which led to the dismissal of the Complainant occurred on 6th November 2017. There is no dispute that an incident involving the Complainant and another employee of the Respondent took place between 11:51:55 and 11:53:00am. The Complainant confirmed that, provoked by Mr V, he raised his hand but did not hit the colleague. The Complainant promptly reported the matter to the Respondent by email. The Complainant informed the Respondent that Mr V “showered me with abuse” and quoted unquestionably offensive and unacceptable expression used by Mr V. In his email the Complainant reported that Mr V had threatened him before. He asked the Respondent to take the matter seriously as he didn’t know what to expect next from Mr V and found it inappropriate to receive such abuse from the co-workers. The Respondent thanked the Complainant for bringing the matter to its attention and obliged to arrange a meeting regarding this matter. On 7th November the Respondent by email informed the Complainant that Mr R of the Respondent would meet him to discuss these matters. The Complainant was not informed that the meeting scheduled for 8th November would, in fact, be an investigation meeting in respect of his conduct. A statement was taken from the Complainant at the meeting in respect of the incident of 6th November 2017. The Complainant admitted that he swung his hand but did not hit Mr V. He informed the Respondent that Mr V started verbally abusing him some one month ago and had threatened him in the past that he would damage the Complainant’s car and hurt him and his daughter.

A disciplinary meeting chaired by Mr G was held on 28th November 2017. At the meeting, the Complainant informed the Respondent that Mr V provoked him and the Complainant swung his hand but he knew that had to stop the conversation, he walked away and reported the matter. The Complainant reiterated that Mr V threatened to damage his car and hurt his daughter and that Mr V told him that his daughter would be an orphan. The minutes of the meeting on 28th November 2017 outline clearly that Mr G informed the Complainant that …”you were issued with a staff handbook and it states grounds for major misconduct as follows: You may be liabke [sic] to disciplinary action if you are found to have acted in any of the following ways – rudeness towards customers, members of the public or other employees, objectionable or insulting behaviour or bad language.” I note that the Handbook referred to differentiates between ‘major’ and ‘gross’ misconduct. The Handbook is clear that in respect of gross misconduct an employee “may be liable to summary dismissal”. However, major misconduct, which the Complainant was alleged of appears to be a lower level of misconduct in the Respondent’s own categorization of misconduct (following ‘minor’ and ahead of ‘gross misconduct’).

The Statement of Outcome of Meeting Held 04/12/2017 letter dated 4th December 2017 states as follows: “During the meeting of 04/12/2017 the issues discussed were regarding gross misconduct, relating to an incident which occurred on 06/11/2017, at…, involving you and a colleague”.” …the company is now satisfied that your actions amounted to gross misconduct, which is outlined in your staff book, and which has been explained to you.”

The Complainant appealed the decision to dismiss and appeal hearing was conducted by Ms L on 21st December 2017. The file containing all information regarding the dismissal was passed on to the Operations Director of the Respondent, Ms E who upheld the decision to dismiss on 9th January 2018.

In its written submission to the WRC the Respondent argues that the incident of 6th November 2017 “exposed [the respondent] to an allegation of not providing its staff with a safe place of work and comprised of totally unacceptable behaviour.” The Respondent goes on to state that the Respondent’s handbook “explicitly states that the following are examples of gross misconduct;

·         Dangerous behaviour, fighting or physical assault;

·         Serious breaches of health and safety rules to endanger the lives of employees or any other persons”

I find that the process that led to the decision to dismiss the Complainant did not meet the standard for fair procedure. The Complainant was not given a written complaint against him. He was not informed that his email reporting the incident triggered an investigation into his conduct. There was no clarity as to what were the allegations against the Complainant. Was it rudeness (major misconduct), dangerous behaviour, fighting or physical assault or serious breaches of health and safety rules to endanger the lives of employees or any other persons (gross misconduct). He was not given access to witnesses and/or notes of any meetings with Mr V, if any was held.

In all of the circumstances of this complaint, I do not accept that the Complainant’s actions of 6th November 2017 constituted gross misconduct. Moreover, the disciplinary meeting outlined that the Complainant’s behaviour constituted major misconduct yet he was summarily dismissed which, under the Respondent’s procedures is the sanction that applies to gross misconduct. Having considered the matter, I find that the decision to summarily dismiss the Complainant was not within the range of reasonable responses available to a reasonable employer finding itself in the position of the Respondent.

Of significance in my view is also the reference by the Respondent to previous incidents. It appears that the undue weight was placed on previous incidents involving the Complainant and the decision to dismiss the Complainant was informed to no small extent by those previous incidents.

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 secured a new employment as of 1st March 2018 on a weekly pay approximately €50 lower than that with the Respondent. Although, he outlined some efforts, he did not provide any evidence that he met the standard in attempting to mitigate his loss.

Having considered the submissions of both parties and all of the evidence adduced at the hearing of this complaint, I find that the complaint of alleged Unfair Dismissal is well founded. I consider it fair and equitable in all of the circumstances of this complaint to award the Complainant €5,000 in compensation.

Unfair dismissal- flawed procedures-