ADJ-00008361

Complainant

Respondent

Anonymised Parties

A Postal Operative

A Postal Delivery Service

Representatives

Caroline McGrath B.L. instructed by Emma Coffey Solicitor

Cathal McGreal B.L. instructed by Paul Carroll Solicitor

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-00011142-001

04/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011142-002

04/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015

CA-00011142-003

04/05/2017

The complainant was employed by the Respondent as a Postal Operative from 2003 until his dismissal which was communicated to him by letter dated 2nd November 2016. The complainant’s last day of service as communicated to him by the respondent was 4th November 2016.

The complaints were lodged to the Workplace Relations Commission (WRC) on 4th May 2017. An officer of the WRC notified the complainant’s representative that the complaints were lodged one day outside of the statutory six-month time frame permissible under the legislation. The complainant’s representative confirmed in correspondence to the WRC dated 8th June 2017 that the complaints were lodged on 3rd May 2017 but that technical difficulties had resulted in the complaints being dated as having been received on 4th May 2017. The complainant’s representative stated that it was subsequently confirmed by a staff member of the WRC that all was in order in relation to the timing of the complaints. The respondent confirmed at the adjudication hearing that it was not raising any objections in relation to the timing of the complaints.

There are two Complaint Applications to be considered under Adjudication Reference No: ADJ -0008361 (CA-00011142-001 and CA-00011142-003). Complaint Application Number CA-00011142-002 was withdrawn at the adjudication hearing.

The respondent contends that the dismissal of the complainant was not unfair. Its actions in dismissing the complainant were legitimate, proportionate and necessary in circumstances where it had conducted an investigation on receipt of numerous complaints in relation to the complainant and had carried out a disciplinary process in line with its procedures.

The respondent stated that the complainant was dismissed for serious misconduct which led to a loss of trust and confidence in him as an employee following an investigation in relation to the following:

a)      Unauthorised entry into (Name of Unit) outside of scheduled working hours

b)      Allowing unauthorised persons access to (Name of Unit)

c)       Unauthorised use of company vehicle outside of working hours

d)      Unauthorised carriage of passengers in a Company vehicle

The respondent stated that the issues which led to the dismissal of the complainant were not an exhaustive list of the complaints that it had received in relation to him. The respondent confirmed that the issues which led to the complainant’s dismissal occurred on 25th April 2015, 2nd May 2015 and 9th May 2015. The respondent stated that it received an investigation report on 7th September 2015 and initiated disciplinary action on 7th October 2015. The subsequent process, which the respondent submits was delayed for various reasons, including the complainant’s refusal to participate, culminated in the complainant’s dismissal with effect from 4th November 2016.

Events of 25th April 2015

The respondent stated that the complainant had unauthorised passengers in a Company vehicle and that the same unauthorised passengers were also in a restricted area within the workplace on that date.

Specifically, the respondent submits that the complainant’s wife and child were passengers in the Company vehicle being driven by the complainant which is in breach of Company policy and were also present in an area that is for “authorised” persons only.

Events of 2nd May 2015

The respondent stated that the complainant’s wife and child can be seen arriving at the complainant’s workplace as passengers in the Company vehicle and entering the restricted area. The respondent contends that the complainant’s wife is seen on CCTV footage looking through a tray of mail.

Events of 9th May 2015

The respondent stated that the complainant and his wife and child arrived at the complainant’s workplace as passengers in the Company vehicle and are again seen on CCTV footage in the restricted area.

Respondent’s evidence

Witnesses for the respondent confirmed in evidence that the complainant did not co-operate throughout both the investigation process and disciplinary process. It was confirmed in evidence that the complainant would not identify himself, his wife or their child in the CCTV footage until he had been provided with a copy of the CCTV footage. The respondent stated that the complainant was provided with an opportunity to review the CCTV footage which he did not do. In relation to the incidents that took place 25th April and 2nd May 2015, the respondent stated that unauthorised use of Company vehicles for personal use alone is an offence that can result in dismissal as is the practice of having unauthorised persons in restricted areas of the workplace. In relation to the incidents that took place on 9th May 2015, the Investigating Officers gave evidence that they had observed the complainant leaving his home with his wife and child as passengers in the Company vehicle, briefly attending a communion in the local church and proceeding to the workplace in the Company vehicle and again entering the restricted area before leaving approximately 30 minutes later. The respondent confirmed that these incidents as well as the complainant’s refusal to co-operate throughout the processes ultimately led to his dismissal.

Procedural Issues

The respondent stated that the complainant did not offer any reasonable explanations for his actions throughout the process or refer in any way to the substantive issues that led to his dismissal. The respondent contends that the complainant relied heavily on perceived procedural issues such as the lack of a CCTV policy, whether or not there were signs in place at the material times in relation to having unauthorised persons in the restricted area of the workplace and his knowledge of policies relating to the use of Company Vehicles for personal use. The respondent contends that these technical and peripheral arguments were of little value and did not alter its conclusions on the matter.

Post Dismissal Defence

The respondent stated that the first engagement from the complainant on the issues which led to his dismissal was by letter dated 3rd November 2016, after the appeal decision relating to his dismissal had been communicated to him. The respondent submits that throughout the disciplinary process, the complainant had denied using a Company vehicle for personal use and had also stated allowing persons access to the restricted area of the workplace was a common practice. The complainant maintained that he did not have passengers in the Company Vehicle on a public road at any time.

The respondent stated that, despite his refusal to partake in the process, the complainant remained on the payroll throughout his suspension, and after his dismissal while awaiting his appeal. The respondent stated that it is unreasonable of the complainant to seek to re-open the process following its conclusion in circumstances where he had not made any effort to co-operate since his suspension in May 2015 until after his dismissal in November 2016.

The respondent re-iterated its position that it acted reasonably throughout the process and that its decision to dismiss the complainant was not unfair.

The complainant rejects the respondent’s arguments that he failed to co-operate in the process and that he relied on “technical issues and arguments”. The complainant stated that the respondent failed to apply fair procedures to its investigation and disciplinary processes by its repeated refusal to provide him with CCTV footage, the respondent’s access to the complainant’s private data and the respondent’s surveillance of the complainant and his family at their home.

The complainant stated that as the CCTV policy had not been finalised, the respondent was not entitled to use it in its disciplinary process. The complainant also stated that the letter of dismissal does not include the dates and details of the incidents relied on by the respondent in dismissing the complainant which renders the dismissal unfair.

In relation to the specific issues that the complainant is aware of, it is accepted by the complainant that he attended the workplace outside of working hours after the completion of his overtime on a Saturday. The complainant stated that this was a common practice where postal operatives would get a “head start” in relation to the week ahead. In relation to unauthorised persons attending the workplace, the complainant stated that this was also a common practice and that no other staff had been disciplined or sanctioned as a result. The complainant also accepts that, on occasion, he did not return the Company vehicle immediately after the completion of his shift. In relation to carrying unauthorised passengers in a Company vehicle, the complainant asserts that apart from allowing his wife and child to briefly travel in the vehicle in the carpark of the workplace or while stationery on other occasions, that at no time were the complainant’s wife and child being driven as passengers by the complainant on a Public Road as claimed by the respondent.

In relation to accessing the workplace, the complainant asserts that he entered the workplace with the keys and security codes that had been given to him and was not in breach of company policy or guilty of any offence in that regard.

In relation to unauthorised persons accessing mail, the complainant stated that the stills of the CCTV footage show his wife reading a document which was a generic referendum pamphlet and not privately addressed mail.

Other issues

The complainant stated that there were several other anonymous complaints made against him and that he too had referred complaints to the Independent Monitoring group, the Rights Commissioner and to the Labour Court in relation to his employment. The complainant submits that the respondent considered him to be a troublesome employee and its investigation and disciplinary process was initiated to justify its decision to dismiss him from his employment.

Procedural Unfairness

The complainant stated that the respondent has drawn inferences from the fact that he chose not to answer certain questions of which he was unsure, despite that fact that the respondent had advised him that he was not obliged to say anything during the process. The complainant submits that it was reasonable not to answer questions relating to CCTV footage as he had not previously seen its contents. The complainant also stated that he was not provided with the opportunity to cross examine the witnesses in relation to the incidents of the 9th May 2015. In relation to the restricted area signage in the workplace, the complainant stated that the photographs provided were undated and the signage was not in place at the material time. The complainant asserts, therefore, that relying on such photos also renders the decision to dismiss as unfair.

In conclusion, the complainant submits that the sanction of dismissal was disproportionate and excessive given the unfairness of the disciplinary process, the lack of a definitive policy on the use of CCTV footage, the lack of appropriate signage in place at the time and the complainant’s lack of awareness in relation to returning the Company vehicle after the completion of his shift.

The complainant is seeking reinstatement.

I have given careful consideration to the submissions of the parties, all of the documentation submitted, and the evidence adduced from the witnesses at the adjudication hearings.

In September/October 2015, the respondent initiated an investigation and disciplinary process in relation to the complainant and stated that throughout the process, there was no meaningful engagement from him in relation to the incidents that led to the dismissal. The respondent dismissed the complainant with effect from 4th November 2016 following the complainant’s appeal of his dismissal. Counsel for the respondent stated that the complainant never engaged on the substantive issues until his correspondence of 3rd November 2016 following receipt of the outcome of his appeal. The respondent stated that throughout the process the complainant had engaged in a series of technical and procedural challenges to the respondent’s disciplinary process causing considerable delay to its completion.

The complainant denied that he had attempted to delay the process as claimed by the respondent. The complainant stated that he co-operated with the process throughout but was continually denied procedural fairness by the respondent and was therefore unfairly dismissed.

Band of Reasonable responses

As to whether there were substantial grounds for the Complainant’s 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.”

The role of an Adjudication Officer is to decide on the balance of probabilities if the respondent acted in a reasonable manner in relation to the complainant. In all of the circumstances of this complaint, I am satisfied that the respondent acted reasonably and in line with its procedures throughout the process. The correspondence submitted in relation to this complaint in my view supports the respondents position that the complainant did not address the substantive issues at all until after the appeal of his dismissal. The complainant repeatedly raises a litany of procedural issues which would make it impossible for the respondent to complete a disciplinary process while the complainant remained on full pay up to the final appeal decision. I find that the respondent acted reasonably at all times in its management of the process and that its decision to dismiss the complainant was proportionate.

Accordingly, I do not find that the complainant was unfairly dismissed.

Having considered the submissions of both parties and all of the evidence adduced at the adjudication hearing, I declare that the complaint of alleged unfair dismissal is not well founded.

The complainant contends that as he commenced in the employment of the respondent in 2003, he was entitled to 6 weeks’ notice of the termination of his employment.

The respondent stated that the complainant was dismissed in line with the provisions of Section 14.2 of the Disciplinary Policy which provides a non-exhaustive list of issues that could be classed as serious misconduct. The respondent was satisfied that the incidents which led to the complainant’s dismissal were appropriately classed as serious misconduct and accordingly, the entitlement to notice does not arise.

The complainant was subject to a disciplinary process and was dismissed with effect from 4th May 2016. The dismissal was appealed in line with the respondent’s procedures and the dismissal was upheld. The appeal decision was communicated to the complainant by letter dated 2nd November 2016. The complainant remained on the payroll throughout the appeal. The complainant’s last day of service was the 4th November 2016.

I have reviewed the respondent’s letters of 4th May 2016 and 2nd November 2016. The complainant was dismissed on the grounds that the respondent had lost its trust and confidence in the complainant as an employee as a result of the following:

a)      The Complainant’s Unauthorised entry into (Name of Unit) outside of scheduled working hours

b)      That the complainant allowed unauthorised persons access to (Name of Unit)

c)       The complainant’s Unauthorised use of company vehicle outside of working hours

d)      The unauthorised carriage of passengers in a Company vehicle

The Applicable Law

Section 8 of the Minimum Notice and Terms of Employment Act 1973 provides the following:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”.

In all of the circumstances of this complaint, I am satisfied that the complainant was dismissed as a result of his conduct which resulted in the loss of the respondent’s trust and confidence in him as an employee. In line with Section 8 of the Minimum Notice and Terms of Employment Act, 1973, I find that the respondent was justified in dismissing the complainant without notice.

Having considered the submissions of both parties, I declare that the complaint is not well founded.

Unfair Dismissal, Notice entitlements