Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Company

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-00023036-001

05/11/2018

The Complainant was employed by the Respondent from 15th August 2017 to 15th October 2018 as a warehouse operative.

He submitted his complaint to the WRC on 5th November 2018 claiming that he was unfairly dismissed.

On 14th March 2019, the WRC received correspondence from the Citizens Information Services informing that they were unable to contact the Complainant and, therefore, will no longer be representing him. At the time the adjudication hearing was scheduled to commence on 26th March 2019, it became apparent that there was no appearance by or on behalf of the Complainant. I waited some time to accommodate a late arrival. The Respondent was in attendance.

On 11th April 2019, the WRC received correspondence from the Citizens Information Services outlining the reasons for the Complainant’s non-attendance at the hearing on 26th March 2019 and requesting that the case be re-heard.

Having considered the Complainant’s application I am satisfied that he had good cause for failing to attend the first hearing. The parties were informed of the arrangements for the second hearing to be held on 18th June 2019 by correspondence issued on 14th May 2019.

At the outset of the adjudication hearing on 18th June 2019, it became apparent that there was no appearance by or on behalf of the Respondent. I verified that a letter notifying the Respondent of the time, date and venue of the adjudication hearing was issued on 14th May 2019. The Respondent did not engage with the WRC at any stage prior to the second hearing, it did not apply for a postponement and did not indicate any difficulties attending the hearing. I waited some time to accommodate a late arrival. Having taken these steps, I proceeded with the adjudication hearing in the absence of the Respondent.

The Respondent attended the adjudication hearing on 26th March 2019. However, it failed to attend the hearing on 18th June 2019.

At the initial hearing the Respondent argued that the Complainant was dismissed for gross misconduct. SC of the Respondent submitted that the Complainant called him a number of insulting names in the presence of a number of workers. The Respondent argued that the Complainant’s conduct was totally unacceptable.

The Respondent exhibited an email from the Complainant dated 16th October 2018 and the Respondent’s reply.

The Respondent conceded that no procedure was followed and that the Complainant was dismissed with immediate effect.

The Complainant submits that he commenced work with the Respondent on 15th August 2017. On 13th October 2018 the Complainant’s child fell ill and, as his partner was already at work, he had to take time off work to take care of her.

On 15th October when the Complainant returned to work after one day absence, he asked KR of the Respondent for a force majeure leave for the day he was off. KR said that he would look into the matter and get back to him. Later, SC of the Respondent approached the Complainant and informed him that it was not company policy to give force majeure leave. When the Complainant informed the Respondent that he was entitled to said leave SC became aggressive and said that if he gave the leave to him that the whole workforce would be looking for it. He then told the Complainant to leave the premises as he was fired. The Complainant submits that he went home and gave SC an hour to calm down, he then rang asking “what’s the story”. He was told that the job was gone. The Complainant sent an email on 16th October 2018 asking for a meeting to discuss the situation. SC replied that the Complainant’s language was not acceptable. The Complainant argues that he did not use abusive language as claimed by the Respondent. Rather, when he left the production floor he said “this is a f…..g joke”.

On 24th October 2018 the Complainant received a letter of termination and his P45. The letter states that the Complainant’s employment with the Respondent “ceased on 15th October at 12.15 after you hurled abusive language at me”.

The Complainant submits that at no stage in his employment with the Respondent did he receive any verbal or written warnings and he feels that natural justice and proper procedure was not carried out when the Respondent terminated his employment.

In his direct evidence, the Complainant stated that he liked his job and got on well with everyone. He said that only a couple of weeks before the incident in question SC told him how happy he was with the Complainant’s work and he got a pay raise.

Section 1 of the Act 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: ...

(b) the conduct of the employee,…”

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for an Adjudication Officer to have regard to “(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 (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act.”

In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: “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 also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. (See Re: Haughey (1971) IR 217). In particular, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures.

My role is not to conduct a further factual investigation and substitute my own judgment for that of the employer but rather to objectively assess whether the decision to dismiss the employee was reasonable for that particular employer in the circumstances.

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 Complainant was dismissed for using abusive language. The Complainant denies that he did use the language as outlined in the Respondent’s email of 16th October 2018. Disciplinary procedure of the Respondent, if such exists, was not made available to the hearing.

Gross Misconduct and 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, quoted above.

It is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made.

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.’

The decision to dismiss related to the alleged use of abusive language. I find that, even if the Complainant used abusive language, as asserted by the Respondent and which the Complainant denies, the actions of the Complainant would not amount to gross misconduct.

Having considered the matter, I find that the decision to dismiss the Complainant was wholly disproportionate and not within the range of reasonable responses of a reasonable employer.

Procedural issues

The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process as follows:

·         That employee grievances are fairly examined and processed

·         That details of any allegations or complaints are put to the employee concerned

·         That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

·         That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

·         That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

I find that the Respondent did not adhere to any of the procedures provided for in the Code of Practice prior to arriving at the decision to dismiss the Complainant and, therefore, that procedurally the dismissal was wholly flawed. 

In all of the circumstances of this case, I find that the Complainant was unfairly dismissed on both substantive and procedural grounds.

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 submitted that he did not secure new employment since his dismissal. The Complainant submitted that he was unavailable for work between 10th January and 3rd June 2019. He submitted evidence that he began to look for a new job on 17th October and until the date of the hearing applied for some 20 positions.

Having considered the submissions of both parties and the evidence adduced at the hearings of this complaint, I find that the dismissal of the Complainant was substantively and procedurally unfair and I award the Complainant € 6,220 in compensation.

Unfair dismissal – no procedure followed- procedurally-substantively unfair