ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00015338

Parties:

Complaint(s):

Date of Adjudication Hearing: 18/12/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015,following 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 commenced employment on the 16th of January 2008 where he was employed as a General Operative in a bakery. He maintained that on the 8th of May 2018 he was unfairly dismissed when he returned from sick leave and where he was subject to a disciplinary hearing which led to his dismissal. The Complainant was seeking compensation for loss of earnings.

The Respondent denied that the Complainant was unfairly dismissed.

Summary of Respondent’s Case:

The Respondent submitted that in or around Friday 27th April 2018 the Complainant’s manager was informed by a colleague of the Complainant that the Complainant did not intend to come to work the following week. The Complainant was rostered for work the following week.

The Respondent advised the Complainant’s manager called the Complainant in to discuss the matter and initially the Complainant confirmed he was working on the Sunday, Monday and Tuesday. However, the Complainant subsequently confirmed to the manager that he had planned to go to Poland to have cosmetic surgery to his teeth in advance of a forthcoming wedding. The Respondent submitted that the Complainant’s unplanned absence would have caused severe difficulty for the bakery’s operations.

During the discussions the Complainant asked for a fellow colleague to attend the meeting as an interpreter, despite the Complainant having a history of work related conversations with the Respondent without the need of an interpreter attending. In the ensuing conversation the Respondent submitted that the manager was met with hostility from the Complainant who began to alter the circumstances surrounding why and how he would be travelling to Poland, and where the Complainant maintained it was not a pre-planned trip as it was a last-minute arrangement. The Respondent advised that the Complainant refused to explain when he had booked his flights, and the Respondent advised the Complainant at the meeting that it appeared the Complainant’s intention was to phone in sick for the week leaving the company short staffed. The Complainant contended that he planned to return back to work on 6th May 2018. The Respondent stated it then advised the Complainant he did not have permission to have the time off work and he was expected to attend work as scheduled. The Respondent maintained that the Complainant had booked his flights to Poland in advance of the 29th April 2018 and that he had every intention to attend his dental surgery.

The Respondent submitted that on or about 2nd May 2018 it received a sick certificate related to the Complainant indicating he had a chest infection. It submitted that this sick cert was provided by a colleague of the Complainant. The Respondent maintained that the Complainant was not sick and that he had always intended to take the week off without authority or approval. When the Respondent became aware that the Complainant had departed to Poland the Respondent emailed the Complainant advising the Complainant that he was being suspended and where the Complainant was invited to a disciplinary investigation for an allegation of gross misconduct upon his return.

A disciplinary hearing was held on 8th May 2018 and at this meeting the Complainant refused to confirm when he had booked his flights to Poland advising the Respondent that it was his private business. The Complainant’s medical certificate was also discussed at the meeting where the Complainant responded that he had no control over when he got sick and that it was only after discussion with the Respondent on 27th April 2018 that he had received a phone call from Poland telling him of a chance to get his teeth done so went to the doctor to get a sick note. The Respondent maintained the Complainant advised at the meeting that he knew what he was doing was wrong by not giving proper notice.

Following this disciplinary meeting the matter was reviewed by another manager. On the 10th May 2018 this manager wrote to the Complainant advising that having considered the issue a decision was made to terminate the Complainant’s employment with immediate effect as his actions amounted to gross misconduct where he was deemed to have wilfully and deliberately misrepresented to the company matters in relation to his unauthorised absence from work from 29th April 2018. It submitted the dismissal was entirely to do with the Complainant’s conduct where it held that the Complainant’s actions by leaving the company understaffed undermined his employment with the company, and that the Complainant deliberately misled the Respondent with regards to his travel arrangements to Poland.

The Complainant was advised he would be paid any accrued entitlements and any outstanding remuneration up to and including the date of the letter of dismissal which was the 10th May 2018. The Complainant was also informed that as per the company’s disciplinary procedures he had a right to appeal the decision with the Managing Director. The Complainant did not appeal the matter and submitted a complaint to the WRC on 25th June 2018. The Respondent submitted that this action was contrary to the Complainant’s obligation to exhaust the internal disciplinary procedures prior to submitting his complaint to the WRC.

Referring to jurisprudence on this matter, the Respondent referenced “Pungor v MBCC Foods LTD (UD584/2015)” where an employee decided not to appeal a disciplinary decision the Tribunal had found an employee has an obligation to exhaust the internal disciplinary process prior to seeking to enforce provides externally. She has not satisfied obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process. On the basis the Complainant had made his appeal to the Work Place Relations Commissions before having matters dealt with internally the Respondent submitted that consideration needs to be given to the Pungor v MBCC Foods Ltd decision.

Furthermore, the Respondent submitted that two years previously the Complainant had been subject to a disciplinary hearing where the outcome led to a dismissal. However, that dismissal was appealed and was overturned, and the Complainant was reinstated. The Respondent therefore indicated that the Complainant was aware of the appeal procedure and that his own experience would have indicated the potential for a more favourable outcome, albeit the Respondent did not indicate that a reinstatement may have been an outcome on this occasion.

Summary of Complainant’s Case:

The Complainant stated that he had a medical certificate and he submitted the medical certificate for the period 28th April 2018 to 5th May 2018. He acknowledged that he travelled to Poland that week and while he was on sick leave he received an email inviting him to a disciplinary procedure. The Complainant advised he attended the disciplinary procedure on his return and was subsequently informed of a decision to terminate his employment for his conduct.

The Complainant maintained that some years earlier he had been subject to a disciplinary hearing that led to his dismissal, that was appealed, and he was reinstated. However, he advised that he had concerns with regards to that procedure and where he maintained records related to the dismissal two years earlier had been recreated by the Respondent. He maintained that he did not believe he would get a fair hearing on this occasion if he appealed the decision to dismiss him.

The Complainant also maintained that if he had requested annual leave for the week in question it would not have been granted. He advised that over his ten years of working with the Respondent he would have had his annual leave requests refused which included not being granted leave over the Christmas period. He also submitted that he had never received any increase in pay.

The Complainant acknowledged that he had booked a flight two weeks earlier on the basis the flight was cheap, and he was hoping that over that time he would get notification for a dental appointment.   He advised that he did receive notification in and around the weekend of the 29th April 2018 regarding a dental appointment at short notice. However, he maintained that he was sick at the time as he had reported to his GP who provided a sick cert for the week. He acknowledged that he did go to Poland for that week and had dental surgery.

The Complainant maintained that when he returned he did not receive notes of the disciplinary hearing that took place on the 8th of May 2018 and the letter of the 10th May 2018 advising him that he was dismissed was a concern for him. As he had no trust in the company he did not appeal the procedure and instead directed his complaint to the Workplace Relations Commission.

Findings and Conclusions:

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

S6(4)(c) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore 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 comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 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.”

In relation to procedural fairness, I am guided not only by the Respondent’ disciplinary policy, but also 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). Such rights provide for a right of appeal, and to be heard as part of that appeal process. I must also consider the jurisprudence referred to by the Respondent where, in Pungor v MBCC Foods LTD (UD584/2015), the Tribunal determined that the internal processes must be first exhausted. Indeed, it is well established that failure of a claimant to utilise the internal processes is a significant factor in deciding if a Complainant is entitled to a remedy under the Unfair Dismissal Act.

In the case within it is evident that the Complainant having been rostered for duty failed to attend work and where there was significant concern from the Respondent with regards to the credibility of the reason for the absence of the Complainant. In this regard the Respondent had reasonable concerns in relation to the conduct of the Complainant. The evidence supports that it properly conducted a disciplinary hearing into the matter and where the Complainant failed to exhaust the internal disciplinary procedures by deciding not to appeal the sanction to dismiss him. It is also evident that the Complainant had some years earlier successfully appealed a disciplinary decision and as such could present no just cause not to utilise the internal appeal mechanism with regard to the Respondent’s decision to dismiss him on 10th May 2018.

I therefore find the Complainant was afforded fair procedures prior to his dismissal, that his conduct has been a significant factor in leading to his dismissal, and that he had no justifiable cause not to engage in the Respondent’s appeal mechanism. I therefore do not find the complaint is well founded.

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.

I find this complaint of unfair dismissal not to be well-founded.

Dated: 06/08/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney