ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017741
Parties:
| Complainant | Respondent |
Anonymised Parties | Warehouse Operative | Transport Company |
Representatives | Frank Trappe & Margaret Hubbard of Citizens Information Centre, | Scott Jevons IBEC, |
Complaint:
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-00022918-001 | 30/10/2018 |
Date of Adjudication Hearing: 04/02/2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Warehouse Operative from 18th September 2015 to 14th August 2018. He was paid €26,500 per annum. He has claimed that he was unfairly dismissed and has sought compensation. |
Summary of Respondent’s Case:
The Complainant had been issued with a final written warning on 11th January 2018 in respect of taking unauthorised leave during the Christmas period. It was subsequently learned that he had booked flights in October 2017 for this leave. He admitted his wrong doing and apologised and he was issued with a final written warning which was not appealed. On 25th July 2018 he refused to carry out a reasonable instruction from his Supervisor to bring in trucks for loading. He had performed this duty for two years. The reason he gave that day was because he was refused a pay increase. On 26th July 2018 he again refused to move the trucks. Again, he stated that it was because he was refused a pay increase. That evening he was met by the Night manager and Night Supervisor. They asked him if he would perform the duty of moving the trucks and he refused as he had been refused a pay increase. He was placed on paid suspension, which was confirmed in writing. He was invited to an investigation meeting on 30th July 2018. The investigation was chaired by the Warehouse Manager accompanied by the HR Manager, with a colleague accompanying the Complainant. The Complainant confirmed that the duty of moving in trucks had been part of his job, but he was not comfortable doing it as he was tired. He only admitted to refusing this instruction on 26th July 2018. A second investigation meeting took place on 4th August 2018. He was presented with witness statements, all confirming that the reason for his refusal to carry out the reasonable instruction was due to the refusal of the company to give him a pay rise. The outcome of the investigation was to refer the matter to a disciplinary hearing. A disciplinary hearing took place on 8th August and was conducted by the Managing Director, accompanied by the HR Manager. The Complainant was accompanied by a colleague who also acted as a translator. The Complainant rejected the witness statements and stated that his reason for refusing to move the trucks was because he was tired and he had concerns about a potential accident. The outcome found that on the balance of probability the witness statements were correct. They considered the refusals to be serious misconduct and given the fact that he was on a final written warning a decision was made to terminate the employment. He was given the right to appeal the sanction to the Chairman of the Board, which he declined. It is the Respondent’s position that the dismissal was not unfair as it resulted wholly from the Complainant’s conduct, following a detailed investigation and disciplinary hearing. There are numerous emails from the Complainant to the company seeking pay increases. He was informed that the company could not consider an increase until after January 2019 with the expiry of his final written warning. The most recent email was the day of his refusal and his suspension. On 25th July the day Supervisor was told by the Complainant that he had sent emails to the HR Manager regarding the increase and a change in hours and in consequence of a negative response he stated that he would stop bringing in the trucks into the warehouse. On the next he was asked if he got a response and he replied that he had not and so he would not be moving in the trucks. He had refused to perform one of his core duties. He could have raised a grievance, but he didn’t. He has freely admitted to the wilful withdrawal of his duties. During the investigations he changed his position to that of tiredness and safety concerns. This is dishonesty. Three witnesses came forward to say that the reason was because of the refusal to grant him a pay increase. He failed to avail of the appeals mechanisms. He was already on a final written warning for taking leave that he had been refused. There is a trend of withdrawing labour without regard for the business. The Respondent afforded him all fair procedures throughout and fully complied with the Code of Practice on Grievance and Disciplinary Procedures. S.I.146/2000. It is clear that the Respondent acted as any reasonable employer would do. These actions demonstrated a breach of trust and confidence with the Respondent. They cited Knox Hotel and Resort Ltd UD 27/2004, Audrey Burtchaell v Premier Recruitment International Ltd T/A Premier Group UD 1290/2002 and Murray v Meath Co Co UD 43/1978 in support. This dismissal was not unfair. |
Summary of Complainant’s Case:
The Complainant was asked to move trucks which he refused to do. This duty was not specifically stated in his contract. He refused to move them because he was tired from working nights and he didn’t want to cause an accident. He also asserts that he doesn’t have a license to drive the trucks. He was suspended and called to an investigation meeting. The first meeting took place on 30th July 2018. This was a fact gathering meeting. He was accompanied by a colleague and the Warehouse Manager and HR Manager represented the company. He asserted that he only declined to move the trucks on one occasion. He had been doing a lot of overtime and this contributed to his tiredness. He accepted that he was doing this task for the past two years. He denied that his reason for the refusal was because he was not given a pay increase. The meeting was adjourned for the Respondent to get statements from Supervisors which allege that he said this. He denies that he ever said it was because he didn’t get a pay rise. A second investigation meeting took place on 3rd August 2018. Again, the Respondent accused the Complainant of refusing to move the trucks because he did not get a pay rise. He denied this and pointed out that his pay rise had been declined the previous February and it didn’t stop him moving trucks then. His reason was because he was tired. He was doing this job for two years and dismissal was disproportionate. A disciplinary hearing took place on 7th August 2018. He was accused of refusing to move trucks on three occasions. He accepts that he did it once. The outcome was to dismiss him from this employment. This was totally disproportionate. He was given the option to appeal but he believed the employer employee relationship was broken. They failed in their duty of care tom him. They refused to accept his reason. They cited an Adjudication Officer’s decision14116 in support. His refusal to move the trucks was for one reason only and that was tiredness, fatigue caused by working overtime. The decision to dismiss is unfair and disproportionate. He found alternative work after one week with the same pay and better hours of work. He is seeking compensation. |
Findings and Conclusions:
Substantive matters |
I note that the Complainant was issued with a final written warning for taking unauthorised leave. He had stated that he was sick and received sick pay but it was discovered that he had booked holidays in October for the Christmas period without permission.
I find that that incident was very serious in that he misled his employer about his state of health, took sick pay on false pretences and refused to respect a lawful instruction when his application for holidays was declined.
I find that it was a most serious infraction.
Regarding the second incident of moving trucks I note the conflicting positions of both parties.
The Respondent stated that it happened three times and the reason given to the supervisors was that he had been refused a pay increase.
I note that the Complainant stated that it occurred only once and the reason was that he was tired and so for safety reasons he had declined.
I find that it was not a requirement to a licence to drive these trucks within the confines of the company premises.
I found that at the hearing it was established that he had refused to move trucks on two occasions and so I find that the Complainant’s assertion that it was only once was a false statement.
I found no evidence that the reason for the refusal was that he was tired. He never raised this with his supervisors.
I find that it is an apparent contradiction that he is blaming overtime for his reason for not being able to do his job, yet overtime working is voluntary.
I note the direct evidence of the supervisors at the hearing and on the balance of probability I find their evidence more compelling.
I find that the most recent email was the day of his refusal and his suspension.
I find that the reason why he refused to move the trucks was because he had been refused a pay increase.
I find that this refusal was a refusal to carry out a lawful instruction.
I find that he was already on a final written warning for refusing to adhere to a management instruction regarding his holidays.
Therefore, I find that there was a continuation of the infraction that led to the issuing of the final written warning.
I find that the refusal to move the trucks was a refusal to carry out a lawful instruction and was an act of gross misconduct.
I therefore find that the decision to terminate the employment was substantively unfair.
Procedural matters
I note that the Respondent carried out an investigation into the alleged refusals and held two meetings to that effect. The Respondent decided that he had a case to answer and so it was escalated to a disciplinary hearing.
I note that he was given copies of the witness statements and he had exercised his right to be accompanied with a colleague who also acted as a translator.
I find that the Respondent gave him an opportunity to defend himself.
I find that he was given the right to appeal the sanction but he choose not as he had believed that the employer employee relationship was broken.
I find that the Respondent took into consideration the existence of the final written warning and so no alternatives were considered.
I find that the Respondent applied fair procedure and natural justice. Therefore, I find that the dismissal was procedurally fair.
I refer below to two cases of a higher authority which addressed the question of reasonableness of action of the Respondent.
Judge Linnane in Allied Irish Banks -v- Purcell 2012 23ELR189 commented:
“References made to the decision of the Court of Appeal in British Leyland UK Limited -v- Swift 1981 IRLR91 and the following statement of Lord Denning MR at page 93
“The correct test is; was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonable take one view, and other quite reasonably take a different view”.
Secondly 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.”
I find that the Respondent carried out a detailed investigation and escalated the matter to a disciplinary hearing. I find that the Complainant was given an opportunity to defend himself.
I find that this was a continuance of the infraction that led to the issuing of a final written warning.
Under the circumstances I find that the Respondent acted reasonably in this case and the decision to dismiss was fair.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the above stated reasons, I have decided that this case is not well founded and that it fails. |
Dated: 16th April 2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Unfair dismissals |